Volume 191 — Massachusetts Reports

<p>Agency. Contract. Witness, Cross-examination. Practice, Civil, Exceptions. Evidence.</p> <p>One who was promised a commission in case he procured a purchaser for certain letters patent for a price named, in order to recover the commission, is not obliged to show that a contract of sale was carried out by an actual transfer of the patent. It is enough if he shows that he produced a customer who was able, ready and willing to pay the defendant's price and whom the defendant accepted.</p> <p>The manner and extent of cross-examination are largely within the discretion of the presiding judge, and no exception lies to a proper exercise of this discretion, especially where it does not appear that the excepting party was in any way injured by the ruling of which he complains.</p> <p>In an action to recover a commission which it was alleged the defendant had promised to pay the plaintiff if he procured a purchaser for certain letters patent for a price named, in which the plaintiff had shown that he procured a customer able, ready and willing to pay the defendant’s price and that the defendant made a contract with this customer to sell him the letters patent at the price named which afterwards the defendant failed to perform, it appeared that the defendant for some time had been negotiating with various persons for a sale of his patent, and the defendant produced at the demand of the plaintiff a contract for the sale of the patent made by the defendant with a third person about a year before the making of the contract between the defendant and the customer produced by the plaintiff. The plaintiff was allowed to put this contract in evidence against the objection and exception of the defendant. The jury-returned a verdict for the plaintiff. Held, that the admission of the previous contract was erroneous, as it had no proper connection with the issue on trial and might have prejudiced the defendant both upon the question whether the contract with the customer procured by the plaintiff was absolute or conditional, and by leading the jury to think that the defendant had made and broken other agreements.</p>

<p>Contract, originally on an account annexed for goods sold and delivered, with a second count added later by amendment on a contract in writing, referring to the account annexed to the first count as a bill of particulars. Writ in the Municipal Court of the City of Boston dated September 26,1904.</p> <p>The contract declared on was as follows:</p> <p>“ To Edward Thompson Company (a Corporation organized under the Laws of New York).</p> <p>“ Northport, Long Island, N. Y.</p> <p>“ Boston, Mass., Nov. 27, 1900.</p> <p>5 .2 s' ®</p> <p>o J3 h? O c? ^ g ^P</p> <p>“ Send to me, carriage paid, Volumes 11 to 31 inclusive, of the First edition of the American and English Encyclopaedia of Law, which you are to loan to me during the publication of the Second Edition, and for the use of which I hereby agree to pay you $21.00. I hereby subscribe for the Second Edition of the American and English Encyclopaedia of Law, to be completed in not to exceed thirty-two (32) volumes, including indexes, and agree to pay you therefor $7.50 per volume upon delivery. Volumes loaned become subscribers as soon as 2nd Edition has been paid for.</p> <p>“In case of my failure to keep this agreement I agree to return to you, upon demand, the boobs loaned to me and all volumes of the Second Edition which I have received and not paid for. See back of contract.</p> <p>“No representations or güarantees have been made by the salesman on behalf of Edward Thompson Company which are not herein expressed.</p> <p>“ The subscriber hereby acknowledges the receipt of a duplicate of this contract. This order is subject to the approval of Edward Thompson Company.</p> <p>“Deliver 189 „. ,</p> <p>Reference</p> <p>„. , Signed C. E. Washburn,</p> <p>Reference</p> <p>Address to 1 Beacon St. Room 82</p> <p>. ,, ,T Publisher’s No. ”</p> <p>,, ,T Agent s No.</p> <p>(Indorsed in writing on back as follows:)</p> <p>“ First Delivery.</p> <p>16 Vols. 2nd Edition, 7.50 . 120.00</p> <p>last 21 “ 1st “ 1.00 . . 21.00</p> <p>37 “ for 141.00</p> <p>“ Payments</p> <p>6.00 after delivery and 5.00 every following 30 . days untill all deliverys are paid.”</p> <p>The claim was for the price of twenty-three volumes of the second edition of the American and English Encyclopaedia of Law at $7.50 per volume and for $21 for the loan of twenty-one volumes of the first edition of that publication. Credit was given for payments made on account by the defendant amounting to $136, and a balance of $57.50 was alleged to be due.</p> <p>On appeal to the Superior Court the case was tried before Fox, J., without a jury. It appeared that the last payment made by the defendant was made on October 10, 1903; that the plaintiff delivered at first twenty-one volumes of the first edition, and sixteen volumes of the second edition, and afterwards from time to time delivered volumes 17 to 23 inclusive of the second . edition. Volumes 24 to 28 inclusive although published never were delivered. The remaining volumes necessary to complete the set of thirty-two volumes were not published when the action was brought.</p> <p>The defendant asked the judge to rule:</p> <p>“ 1. That the contract was an entire contract.</p> <p>“ 2. That the exclusive remedy in such a case is an action for breach of contract.</p> <p>“ 3. That upon all the evidence the plaintiff is not entitled to recover.”</p> <p>The judge refused to rule as requested and found for the plaintiff in the sum of $58.82, which was the full amount claimed by the plaintiff. The defendant alleged exceptions.</p> <p>In support of his exceptions the defendant contended that the contract was an entire one for the delivery of the second edition of the encyclopaedia to be completed in not less than thirty-two volumes for which on the delivery of the whole he was to pay at the rate of $7.50 per volume ; that he did not agree to pay for any part of the second edition less than the whole, and that the payments made by him really were made in advance in anticipation of the delivery of the whole work.</p>

<p> Negligence. Railroad. </p> <p>In an action under R. L. c. Ill, § 267, by the administrator of the estate of an employee of a railroad company against the company, for causing the death of the plaintiff’s intestate under circumstances alleged to be such as would have entitled the intestate to maintain an action for damages against the defendant if death had not resulted, the plaintiff cannot recover if the death of his intestate was caused by the negligence of a fellow servant although such fellow servant was entrusted with and exercising superintendence and his sole and principal duty was that of superintendence.</p> <p>In an action under R. L. c. 106, § 73, by the mother of an employee of a railroad company, who was his next of kin and dependent upon' him for support, against the company for causing the instant death of the plaintiff’s intestate through the alleged negligence of a person entrusted with and exercising superintendence, it appeared that the intestate with the others of a gang of ten men was working on a track over which trains frequently were passing and that a person, who could have been found to be entrusted with and exercising superintendence and whose sole or principal duty was that of superintendence, stood near the men with a time table and a watch and would tell the men to jump when a train was about due, that this superintendent called six of the men and took them away with him to unload a car about half a mile distant, and left four men including the plaintiff’s intestate without any one to warn them of approaching trains, that the intestate started to go with the superintendent but the superintendent sent him back, and the four men continued to work oír the track until an express train came along and instantly killed the plaintiff’s intestate and another of the workmen. Held, that a verdict should have been ordered for the defendant, as it could not be found that the workmen at the time of the accident relied upon any expected warning from the superintendent, and that by continuing to work without any one to give them warning the workmen either assumed the obvious risk of being struck by passing trains or were negligent in failing to take any precaution to guard against such an accident.</p>

<p> Negligence. Street Railway. </p> <p>A woman only four feet in height, who, never before having been in a subway, is a passenger in a surface car which has stopped at a station in a subway upon a curve so that the space between the steps leading from the front platform of the car and the platform of the station is about fifteen inches, if, on being directed by the conductor to alight from the front platform of the car and seeing the passengers ahead of her stepping off, she steps into the opening, falls into the space between the steps of the car and the platform and is injured, when, according to her own account of the accident, if she had seen the platform she could have stepped over to it by taking an extra long step and if she had looked a little more closely would perhaps have seen the space into which she fell and might have avoided stepping into it, cannot be found to have been in the exercise of reasonable care.</p> <p>It is not evidence of negligence on the part of a street railway company operating its cars in the subway in Boston by permission and in accordance with reasonable regulations of the Boston Elevated Railway Company, that it stopped a car at a station in the subway upon a curve and that the conductor of the car directed the passengers to alight from the front platform of the ear where there was a space of about fifteen inches between the car steps and the station platform without warning them in regard to the space which they were obliged to step over.</p>

<p>Negligence, Employer’s liability.</p> <p>A guard rail above the feed board of a steam mangle in a laundry, which serves to warn the operatives by toucii of the danger of having their fingers go beyond it, but although properly constructed for that purpose is not an adequate protection against the hands of the operatives being drawn between the rollers and is understood by the operatives not to be so, is not in the nature of a trap, and the danger of injuries from their hands being caught in the rollers is an obvious one-assumed by the operatives.</p> <p>A girl employed in a laundry, usually in the ironing room, who knowing the danger of her fingers getting caught in feeding sheets through a steam mangle reluctantly consents to undertake that work under a threat from the superintendent of dismissal if she refuses, if she is injured by her hand being drawn in between the rollers in the manner that she feared, has no remedy against her employer.</p>

<p>Fraternal Beneficiary Corporation. Evidence, Presumptions and burden of proof.</p> <p>In an action by the executor under the will of a deceased member of a fraternal beneficiary corporation to recover the amount of a death benefit, the answer of the defendant contained a general denial and also alleged payment. It appeared that the deceased was a member in good standing of the defendant, that under the constitution and by-laws of the defendant a member could designate as beneficiary a person dependent upon him, that by an instrument in writing the deceased designated as beneficiary a person who was not a relative but who had done his housekeeping for several years, that this designation was approved by the defendant, and that after the death of the member the defendant paid to the person designated the amount due under the certificate. There was no evidence that the deceased ever designated any other beneficiary, and there was no evidence other than the payment and the recognition of the assignment that the person designated as beneficiary was dependent. Held, that under the issue raised by tiie general denial the plaintiff could maintain his action only by showing that he and not the person who was paid was entitled to receive the money, that the burden was on him to show that the person designated as beneficiary was not dependent and that a finding was justified that he had not sustained that burden.</p>

<p> Carrier. Corporation. Waiver. </p> <p>A printed provision in the receipt of a common carrier, limiting its liability in case of loss by a stipulation concerning the value of the property which it undertakes to transport, in order to be operative must be brought home to the knowledge of the shipper under such circumstances that his assent to it fairly can be assumed.</p> <p>In an action by a corporation against a common carrier, also a corporation, for the loss of a package worth $60, delivered by the plaintiff to the defendant for transportation, it appeared that the receipt given by the defendant contained a stipulation limiting its liability to a valuation of $5 unless the true value should be stated and an additional charge made, which was not done, that the plaintiff’s treasurer when he called at the defendant’s office about the lost package and asked to see the manager was told by a clerk “ It is unnecessary to see the manager, we are responsible, the receipt amounts to nothing. Go ahead and replace the goods, and if the bill is O. K. we will pay it,” and that later the plaintiff’s president saw the defendant’s manager and told him what the defendant’s clerk had said, and the manager said “ I will look into it; you present your bill any way, and if it is as you say, and a just bill, we will pay it.” No question was raised at the trial as to the justness of the bill. Held, that there was evidence of ratification by the defendant’s manager of the act of the defendant’s clerk in waiving the limitation of liability contained in the receipt, and that a finding that the defendant was liable for the full value of the package was justified.</p>

<p> Landlord and Tenant. Elevador. </p> <p>The owner of a building who has leased the whole of it to two separate tenants who together have control of it, each of whom has covenanted to keep the premises in such repair as the same are in at the commencement of the term or may be put in by the lessor during the continuance thereof, is not liable for the death of a teamster due to a defect in the gate of the well of a freight elevator in the building if there is no evidence that the elevator and its appliances were not in good condition at the time of the letting and no evidence of any notice to the owner that the gate was defective.</p>

<p>Contract, Implied: common counts, Performance and breach. Attorney at Law.</p> <p>In an action by an attorney at law for compensation for services, with a count upon an account annexed, it appeared that the plaintiff was employed by the defendant to effect a settlement of certain suits pending against the defendant’s wife, that the plaintiff performed certain services of this character, whereupon the defendant gave him a memorandum signed by the defendant agreeing to pay the plaintiff a certain sum of money for effecting a settlement of certain proceedings and suits then pending against the defendant’s wife which should be satisfactory to the defendant, that the plaintiff thereafter performed further services in endeavoring to procure a settlement, that soon afterwards the defendant told the plaintiff that he did not wish to make any settlement but preferred to contest the cases, and that the plaintiff declined to take part in a contest on the ground that he had been employed to make a settlement Held, that a finding for the plaintiff, for the reasonable value of his services rendered before the defendant’s termination of his employment, was justified, and that whether the plaintiff had effected a settlement satisfactory to the defendant was immaterial as the defendant had repudiated his agreement.</p>

<p> Pleading, Civil. Attorney at Law. </p> <p>In an action by an attorney at law for compensation for professional services, a first count on a promissory note for $9,926 dated on May 15 of a certain year and a second count for a balance of $1,478 found due on an accounting between the plaintiff and the defendant on or about May 6 of the same year are not inconsistent, and on the plaintiff showing that the promissory note sued on in the first count was given for services for which a bill was sent in the previous March and covered none of the services for which compensation is claimed in the second count, he may recover on both counts for the full amount claimed.</p>

<p>Negligence, Employer’s liability.</p> <p>If a machine, which is stopped by means of a shipper shifting the belt which transmits the power from a tight pulley to a loose one and is started again by reversing the process, after having been stopped in the proper manner by the person operating it, starts of itself and injures the operative, this fact unexplained is evidence of some defect in the machine and of negligence on the part of its proprietor in allowing this defect to exist.</p> <p>A person employed as a printing press feeder engaged in printing envelopes who does not know that the machine he is operating is out of order does not assume the risk of an injury from the machine starting of itself after he has stopped it properly.</p> <p>In an action by a printing press feeder against his employer for personal injuries, there was evidence that the plaintiff was engaged in printing envelopes, that some envelopes had fallen inside the machine and that he stopped it to take them out, that the machine was stopped by means of a shipper shifting the belt which transmitted the power from a tight pulley to a loose one and was started by reversing the process, that the plaintiff stopped the machine in a proper manner, and after waiting to see that it was at a full stop put his right hand inside to remove the fallen envelopes when the machine suddenly started of itself and his hand was caught and crushed. Experts testified that it would be impossible for the machine to start after coming to a full stop unless there was a defect in the belt or in the machine itself, and the plaintiff testified that on the last working day before the accident the belt broke and a foreman, whom the jury were warranted in finding to have been a superintendent within the meaning of the employers’ liability act, mended it by lacing it, and that after the accident while the plaintiff’s hand was in the press he noticed that the belt was crawling from the loose pulley to the tight pulley and attributed this to the belt being laced improperly. Held, that there was evidence of negligence on the part of the defendant.</p>

<p>Negligence, Employer’s liability. Railroad.</p> <p>In an action by a workman employed by a railroad company in a freight yard against his employer under R. L. c. 106, § 71, cl. 3, for personal injuries, it appeared that the plaintiff in the course of his employment was engaged in helping the employees of a teamster to load stone on a flat car, that an old weather beaten plank about eighteen feet long which had been used to pry the stone had been thrown by one of the employees of the teamster upon the car in such a way that it projected over the edge of the car and over a parallel track, that a train consisting of a locomotive engine and eight cars was backing down on the parallel track at the rate of about six miles an hour with a clear track ahead, that as the train was moving a flat car came first and next was a furniture car on the top of which were two brakemen, that the conductor was standing about in the centre of the flat car looking ahead all the time to see if the track was clear, that when he first saw the plank it was about one hundred and eighty or two hundred feet away, that he at once gave the stop signal to the brakemen on the top of the furniture car and they repeated it to the engineer who stopped the train as quickly as possible, that the plank was struck by the furniture car, causing the plaintiff’s injuries, and that the train came to a stop when the furniture car was ten feet past the car on which the plaintiff was injured. Held, that there was no evidence of negligence on the part of the conductor in charge of the moving train.</p>

<p>Negligence, Employer’s liability. Evidence, Competency, Opinion.</p> <p>In an action by an employee in a wood working mill against his employers for personal injuries, it appeared that the plaintiff was a boy about eighteen or nineteen years of age and was hired at $5 a week to help around the shop, tie up bundles of sheathing, pile lumber, sweep and run errands, that one of the workmen was ordered by one of the defendants to take the plaintiff and go to work on a machine called a buzz planer, that the plaintiff never had worked on the planer and never had seen it in operation, that it was a dangerous machine to do wood planing upon when used without a guard, that there was no guard upon it, that guards were in general use on such machines and that a guard could have been used at the time of the accident and would have served as a protection for an inexperienced person, that when knots, knurls and other irregularities in a board being planed came in contact with the knives of the machine, the board was likely to kick up or jump, and that this action of the board would have a strong tendency to throw the hand of the operator against the knives, if there was no guard, although an experienced man could get his hands out of the way and protect himself, that the plaintiff knew that there were knives there and that if he put his hand on them he would get hurt, but there was evidence that he did not know of the tendency of a hoard to jump or kick while being planed or of the danger from this cause, that while the plaintiff was assisting the workman to hold a board against the guide to be planed “ it jumped, kicked or flew from under the plaintiff’s hand ” and his hand went into the knives of the planer, and was injured. Held, that there was evidence ■ for the jury of negligence on the part of the defendants in setting the plaintiff at work upon a dangerous machine without such warning or instruction as he should have had, and that the risk was not an obvious one which he assumed.</p> <p>In an action for personal injuries alleged to have been caused by the defendant’s failure to equip a dangerous machine with a guard it is proper to exclude evidence that a guard for the machine was made the day after the accident and thereafter was used.</p> <p>In an action by an inexperienced employee in a wood working mill against his employer for personal injuries incurred when the plaintiff had been set at work on a machine called a buzz planer alleged to be dangerous, on the cross-examination of an expert called by the defendant the presiding judge in the exercise of his discretion properly may exclude the question: “ Holding the piece of timber when you are doing edge planing against the knife in the case of an inexperienced man do you regard that work as dangerous 1 ”</p>

<p>Contract, What constitutes, Implied: common counts.</p> <p>In an action of contract for board and money furnished to the defendant’s testator whose only child was the plaintiff’s wife, if there is evidence warranting a finding that the plaintiff furnished the board and money, not as a gift, but with the expectation of creating a liability of the defendant’s testator for its payment and relying upon the fact that the testator had property more than enough to repay him, and that the testator did not understand that what he received from the plaintiff was a gratuity, a finding for the plaintiff is justified, although it appears that the plaintiff when he furnished the board and money did not expect to enforce his legal right but was willing to refrain from doing so for the purpose of increasing his wife’s expected inheritance from her father.</p>

<p>Bankruptcy. Surely. Poor Debtor. Words, “Altered.”</p> <p>After a poor debtor arrested on execution has made default on his recognizance, an action by the judgment creditor against the surety on the recognizance is not barred by the subsequent adjudication of the poor debtor’s bankruptcy, nor can such adjudication have the effect of reducing the damages to be recovered against the surety.</p> <p>In the provision of the bankruptcy act of 1898 that “ the liability of a person . . . as surety for the bankrupt shall not be altered by the discharge of such bankrupt ” the word “ altered ” includes a change in the extent of the liability as well as a change in the nature of it.</p>

Tort for the alleged unlawful killing of a dog of the plaintiff. Writ dated March 27, 1905. In the Superior Court the case was submitted on an agreed statement of facts and the court was authorized to draw inferences- from the facts stated. The court ordered judgment for the defendant; and the plaintiff appealed.

<p> Negligence. </p> <p>A woman passenger on an open electric car who, in attempting to alight from the left hand side of the car, steps on the running board and then, without looking on the ground and paying no attention to the place where she is about to step, puts her left foot down and lets go of the handle of the car before her foot touches the ground, whereupon she falls into a gutter about eight inches deep at the side of the road and is injured, is not in the exercise of due care.</p>

Tort against an attorney at law for alleged negligence whereby the plaintiff lost a gasoline engine. Writ in the Municipal Court of the City of Boston dated February 18, 1903.

<p>- Contract for alleged breach of an oral contract to sell to the plaintiff a barge load of about eight hundred tons of anthracite coal for the price of $8.50 per ton to be delivered by the defendants free on board a vessel at Perth Amboy, New Jersey, and to be loaded during the week beginning November 30,1902. Writ dated January 24, 1903.</p> <p>The answer contained a special denial and set up the statute of frauds. At the trial in the Superior Court before Hardy, J. it appeared that at the time the contract was made the plaintiff was engaged in the retail coal business in Boston, and the defendants were copartners engaged in the business of buying and selling coal in Boston under the firm name of F. H. Odiorne and Company.</p> <p>Odiorne Swain, one of the defendants, called as a witness by the plaintiff, testified that he was one of the partners in the firm of F. H. Odiorne and Company, and that he and one Browne attended to the business of the firm together; that between October, 1902, and January 15, 1903, he purchased only one cargo of coal, and that that cargo consisted of eight hundred tons of anthracite coal, egg, stove and nut mixed, which he bought from Meeker and Company of New York at $8 per ton f. o. b. at Perth Amboy, N. J.; that his firm had an offer of this coal from Meeker and Company, and that with his approval, his firm acting as brokers, his salesman, one O’Brien, offered the same for $8.50 per ton f. o. b. at Perth Amboy; that the offer was made to one Betteley, who reported it to the plaintiff; that upon O’Brien’s report to the witness of his interview with Betteley the witness wrote a letter to Betteley, which was produced, identified by the witness and was admitted against the objection of the defendants. The letter was as follows:</p> <p>“ F. H. Odióme & Company,</p> <p>“ 147 Milk Street, Room 504,</p> <p>“ Shippers of Anthracite, Bituminous & Gas Coal.</p> <p>“ Boston, November 28th, 1902.</p> <p>“ Mr. Albert C. Betteley,</p> <p>“ 44 Kilby Street,</p> <p>“ Boston, Mass.</p> <p>“ Dear Sir: —</p> <p>“Confirming the agreement made by our Mr. O’Brien with you today.</p> <p>“We have entered an order for a barge load of anthracite coal, one bin each of egg, stove and nutt, to be shipped to John Morrison, East Boston.</p> <p>“We are to bill this coal to Mr. Morrison at $8.50 per ton f. o. b. at Perth Amboy, and are to pay you a commission of 25c. per ton. The coal to be paid for cash on delivery of the bill of lading. We have bought this coal with the understanding that it is to be loaded next week, and have engaged a barge of about 800 tons’ capacity from the Bee Line Transportation Co. at $1.25 freight to transport same.</p> <p>“ Please get Mr. Morrison to send us a written confirmation of this order.</p> <p>“ Yours truly,</p> <p>“ F. H. Odiorne & Co.”</p> <p>The witness then was asked, “ You state you have entered an order for a barge load of anthracite coal. Where did you enter that order, on your books ? ” and answered “ Made a memorandum on our books.”</p> <p>The witness further testified that he did not remember whether he actually accepted the offer of Meeker and Company before writing this letter, or whether this was done after the writing of the letter; that the two transactions were as nearly as possible at the same time; that he had “ a complete agreement, an agreement that was completed at some time with Meeker to furnish me that coal.”</p> <p>The witness testified that with reference to writing and making the entry on his books, he thought that he followed out his usual custom when making a contract for the sale of coal.</p> <p>He then was asked, “And that wording that you have put in there 6 We have entered an order for a barge load of anthracite coal,’ and followed up by the entry which you made on your books, is your usual course when you make a sale of coal, is it not?” and answered, “We do not have any usual custom about that, sir. We do that in different ways, at different times, under different conditions.”</p> <p>Betteley to whom the letter printed above was addressed testified that he was a coal dealer in Boston ; that on November 28, 1902, O’Brien, who is named in the letter, representing F. H. Odióme and Company came to his office, and Betteley, acting for the plaintiff, made with O’Brien an oral contract for the purchase of the coal on the terms named in the letter; that he told O’Brien that he wanted a memorandum of the sale and that O’Brien brought him the letter printed above.</p> <p>He further testified that he notified the plaintiff over the telephone in the presence of O’Brien that the sale had been consummated; that a day or two afterwards he called at the office of F. H. Odiorne and Company and asked the defendant Swain what were the prospects of shipping that cargo he had sold to Morrison, and that he was told by Swain that the coal would be loaded in a few days; that Swain asked him if he had an acknowledgment from Morrison, and he said that Morrison had telephoned him twice and that Morrison wanted the coal; that when asked whether he had an acknowledgment in writing he said that he had not, and that Swain said, “ Why don’t he send it over?” and that the witness replied, “Well, I presume he will, that is all right ”; that that was all the conversation they had. When the witness was asked whether Swain made any reply to that he answered that he offered no objection ; that a few days afterwards he saw O’Brien in relation to the cargo, and in reply to his inquiries was told that they were waiting for the barge to get there and the cargo to be shipped.</p> <p>At the close of the evidence the judge ruled, as stated in the opinion, that there was no sufficient memorandum to satisfy the statute of frauds, and ordered a verdict for the defendants, stating “ The evidence to my mind is convincing that this was really an offer on the part of the defendants in reference to this cargo of coal, and the terms of the contract had not been sufficiently shown here, by the contract put in evidence, — the writing,— to comply with the statute, therefore, I shall have to order a verdict for the defendants.” The plaintiff alleged exceptions.</p>

<p> Negligence. Municipal Corporations. </p> <p>In an action of tort against a city for alleged negligence in maintaining a sewer pipe so constructed <vs to back sewage upon and flood the premises of the plaintiff, there was evidence that about ten years before the injury complained of the defendant in putting in a sewer had constructed a drain pipe to aid in connecting the sewer with the property afterwards owned by the plaintiff, and that about eight years later the plaintiff built the connection between his house pipe and the pipe laid by the city. The plaintiff testified that he was an experienced drain layer-and that in building the connection no cement was left in the pipe which he constructed, that for about a year and a half after the comiection was established the drain worked well, and that when the obstruction of the drain and the consequent injury occurred it was found that the portion of the pipe which the city had constructed was blocked with several pieces of cement, one of which was five inches square. The plaintiff contended that there was evidence that the defendant negligently allowed the pieces of cement to get into the drain when it was constructed. Held, that the inference which the plaintiff sought to establish was mere conjecture, there being nothing to show how the pieces of cement got into the pipe, even if it was assumed that their presence in the pipe caused the sewage to back upon and flood the plaintiff’s premises, and that a verdict properly was ordered for the defendant.</p>

<p>Marriage and Divorce. Words, “ Intoxication.”</p> <p>On the trial of a libel for divorce under R. L. c. 152, § 1, there was evidence that the libellee for many years took a medicine called tincture of sudorific which she admitted contained opium, that her husband, the libellant, who did not know what it was, bought it for her at first in half pints and pints and later in pints and quarts, that she had the appearance of one addicted to the excessive and continued use of opium and that at times her conduct was such as fairly might be attributed to the excessive use of that drug, that the libellant did not know until a physician was called to attend the libellee in an attack of illness that the medicine contained opium, that he was told by the physician that she must have it, but to wean her from it, that they must give it to her, but in small doses and as little as possible, and that he made subsequent purchases of tlie medicine in order to carry out this direction. There was conflicting evidence as to whether the excessive use of opium by the libellee existed at the time the libel was served or whether she had given it up. Held, that a finding was justified that the libellee had contracted gross and confirmed habits of intoxication from the use of opium whicli existed when the libel was brought, and that there was no connivance on the part of her husband.</p>

<p> Damages. Evidence. Boston Elevated Railway Company. </p> <p>At the trial of a petition for the assessment by a jury of damages to real estate the presiding judge in his discretion may admit evidence of the rents actually received from the property during the four years previous to the act which occasioned the damage as bearing upon the rental value of the real estate which is one of the things that enters into its market value.</p> <p>At the trial of a petition for the assessment by a jury of damages to real estate the presiding j udge in his discretion may admit evidence of the cost of a building standing on the land erected four years before the act which occasioned the damage, to assist the jury in arriving at the market value of the property at the date as of which the damages are to be assessed.</p> <p>At the trial of a petition under St. 1894, c. 548, and St. 1897, c. 500, for damages to land and buildings of the petitioner by the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, it appeared that tile construction of the elevated structure in front of the petitioner’s premises began in October, 1899. The husband of the petitioner testified without objection that lie bought the land for his wife in 1895 for §3,250, and that in the same year he erected a brick building on the land for his wife. He was asked to state the cost of this building. The respondent objected, and the judge admitted the question. He answered §12,300. The witness also was asked to state the rents received from the property, beginning in the latter part of 1895. The respondent objected on the, grounds that the time named was immaterial and that actual rents were not competent to show rental values. The judge admitted the question as throwing light on the rental value, and the witness gave the rents in detail. Held, that the admission of the evidence in both instances was within the discretion of the presiding judge and that there was nothing to show that Ms discretion was exercised improperly.</p>

<p>The following statement of the case is taken from the opinion of the court:</p> <p>This was an action of tort containing three counts. The first two were for trespass quare clausum fregit. The first count alleged that the plaintiff was the owner of a close situated at 99 Tremont Street in the city of Everett, and that the defendants forcibly entered on the same about the middle of January, 1902, and “ wrongfully and unlawfully roped off the approach to said premises, and used a portion of said premises in connection with the premises adjoining thereto, as a yard for a smallpox hospital, and used the said premises for said purpose from day to day thereafter for a long period of time.” The second count alleged that the plaintiff owned two lots in Everett, one on the corner of Tremont Street and Everett Street, and one on Everett Street, and “that on or about the 27th day of January, 1902, the defendants unlawfully and without the consent of the plaintiff, took possession of said lots of land and the buildings thereon, and thereafter occupied said premises of the plaintiff in connection with a certain smallpox hospital established by the defendants.” The third count alleged the ownership of the two lots of land mentioned in the second count, and of a third lot on Tremont Street, on which were buildings containing a store and apartments let to tenants at will and one occupied by himself; and “that on or about the 27th day of January, 1902, the defendants negligently and carelessly and unlawfully established a smallpox hospital on the premises adjoining the plaintiff’s lots aforesaid on Everett Street and on the corner of Tremont and Everett Streets, and in the immediate vicinity of the plaintiff’s house on Tremont Street, and there negligently and carelessly and unlawfully maintained said smallpox hospital for a long period of time ”; and that “ said hospital by reason of its location and maintenance as aforesaid was a serious nuisance, and a great damage to the plaintiff’s property aforesaid, and said hospital was established and maintained by the defendants against the protest of the plaintiff; that in consequence of the careless and negligent and unlawful location and maintenance of said hospital the plaintiff’s said store and apartments were vacated by the tenants occupying same at the time said hospital was established, and the plaintiff was unable by reason of such location and maintenance of said hospital to rent said store and apartments for a long period of time; that by reason of the idleness of said store and apartments occasioned as aforesaid the plaintiff has been put to great expense for repairs; that since the establishment of said hospital, and in consequence thereof, the streets in the immediate vicinity of the plaintiff’s premises have been but little used by the public generally, and the rental value of the plaintiff’s said store has been greatly depreciated; that since the establishment of said hospital, and by reason thereof, the rental value of the said apartments have also been greatly depreciated in value.”</p> <p>The defendants’ answer set up a general denial, and the special defence that they were members of the board of health of the city of Everett, and on November 22 occupied certain premises adjacent to the plaintiff’s, for a contagious hospital, and on December 1,1901, took a lease thereof from the owner of it, and that in all that they did they were acting in their official capacity as members of the board of health of that city, and that they are not liable.</p> <p>At the trial it appeared that the plaintiff owned a building on the corner of Tremont Street and Everett Street, and another farther down Everett Street. Next to the house on the corner was a house fronting on Tremont Street, and distant sixteen and a half feet therefrom, which ran along on the back of the plaintiff’s Everett Street house and distant nineteen feet from that house. In this adjoining house a case of smallpox broke out in November, 1901, and was treated there. On or about January 10, 1902, the patient had been discharged and the quarantine of the house discontinued. The plaintiff suffered no damage from the treatment of this case.</p> <p>Afterwards, on January 27, 1902, the defendants brought to this house a patient who had fallen ill with smallpox in another part of the city, and from then until some time in September the defendants brought about fifty other smallpox patients and treated them there. One of the defendants told the plaintiff on the day that the first patient was brought there, “ that it was a waste of time to make any protest about the matter, as they had decided to use the house as a hospital.”</p> <p>Before the establishment of the hospital the land of the plaintiff (between his house on the corner and the boundary line between his land and that on which the building used as a hospital was situated) had been used as a passageway to the back entrance of the plaintiff’s house on the corner and of his house beyond on Everett Street. There was no fence between the plaintiff’s land and the land leased by the defendants but the boundary line was marked by a division post. Ambulances carrying patients to the hospital and taking bodies from it passed over the plaintiff’s premises to and from a door on the side of the hospital facing the plaintiff’s corner house. There also was evidence that “ Nurses employed at the hospital used the plaintiff’s land for recreation purposes, and sundry utensils used in the hospital were deposited and left on the plaintiff’s land by the nurses and attendants at the hospital. These nurses were employed by, and worked under the directions of the defendants. After the hospital had been in operation for some time, a rope fence was extended around a portion of the hospital. Between this rope fence and the building used as a hospital, and within the enclosure thus roped off, a portion of the plaintiff’s land was included, and this rope fence was afterwards suffered to remain as originally located until the hospital was finally abandoned. One of the stakes supporting this rope fence was located upon the plaintiff’s land and was put there at the time the rope fence was erected. The plaintiff never gave the defendants permission to occupy or use any portion of his premises, and the same or any portion thereof was not taken by virtue of any warrant or process issued therefor.” The passageway on the plaintiff’s land was closed by the rope fence, and the plaintiff and his tenants were excluded from the use of it.</p> <p>The plaintiff also introduced evidence that “ after the hospital had been in operation a couple of months, eight or nine cases of smallpox arose in six or seven houses in the immediate vicinity, including the plaintiff’s house on Everett Street, and the evidence introduced by the plaintiff tended to show that smallpox was a dangerously contagious disease, and that the smallpox cases treated at the hospital caused the cases which arose in these houses in its neighborhood.”</p> <p>The plaintiff also introduced evidence that “ in consequence of the location and maintenance of the hospital ” his store and apartments were vacated, and that he “ lost in rents by reason of the vacancies occasioned by the presence and operation of the hospital, and the repairs necessitated by the continued idleness of his premises about $1,600,” and that when he got tenants it had to be at a reduced rate, making “ a total loss to the plaintiff in rents, repairs and depreciation on account of the location and maintenance of the hospital of from thirty-one hundred to forty-one hundred dollars.”</p> <p>The plaintiff offered to prove “ that the defendants had maintained the hospital in a negligent and careless manner, and that their carelessness in this respect made the hospital a nuisance to the plaintiff. The court refused to admit the evidence thus offered, and the plaintiff excepted.”</p> <p>The plaintiff also offered to prove “ that there were suitable locations for a smallpox hospital within the city of Everett where the maintenance of the hospital could cause little or no damage to surrounding property, and that the defendants were negligent and careless in locating a smallpox hospital where they did, but the court refused to admit this evidence and the plaintiff excepted.”</p> <p>The defendants put in evidence the lease annexed to their answer, to which the plaintiff excepted. In addition, “ The defendants testified orally that they were members of the board of health of the city of Everett, and that what they did in the establishment and maintenance of the hospital, they did as members of the board of health of the city of Everett.” To this the plaintiff excepted. Ho evidence of the election, appointment or qualification of the defendants as members of the board of health of the city of Everett was introduced other than their own statements that they were such officers..</p> <p>On cross-examination the defendants testified “ that in locating the hospital where they did, they paid no attention to the fact that it was located within one hundred rods of inhabited dwellings in the city of Malden; that they did not consider smallpox a dangerous disease, and that if said hospital was properly conducted it would not be a source of danger.”</p> <p>The plaintiff asked for the following rulings:</p> <p>“ 1. The defendants as members of the board of health of the city of Everett had no right to establish a hospital for the general treatment of smallpox cases gathered from various parts of the city of Everett, and covering a period of several months, and if they did this they exceeded their powers as members of the board of health, and they are liable for such damages as the plaintiff suffered thereby.</p> <p>“ 2. Boards of health in acting under statutes authorizing them to seize and impress property must comply strictly with the statutes. They have no right to seize or to impress property against the consent of the owner, except by the warrant and process pointed out in the statutes, and there is no evidence in this case that the plaintiff’s property was taken or impressed under the warrant and process provided in the statutes, and if you find that the defendants did seize or impress or use any portion of the plaintiff’s property without his consent and to the exclusion of the plaintiff, the defendants are liable to the plaintiff for the damages resulting therefrom.</p> <p>“ 3. The defendants as members of the board of health had no right to seize the plaintiff’s property to the exclusion of the plaintiff’s use of same. While if a case of smallpox arose in-one of the plaintiff’s houses, or in its immediate vicinity, they had the right as a board of health to regulate the use of the plaintiff’s property, they had no right to exclude the plaintiff therefrom, except by the warrant and process provided in the statutes, and if they seized or excluded the plaintiff from the use of his property in any other manner, they are liable.</p> <p>“ 4. The defendants as members of a board of health had no right to arbitrarily establish a hospital anywhere within the city of Everett for the general treatment of smallpox cases gathered from different parts of the city of Everett. They must exercise a reasonable discretion in selecting a site for such a hospital, and if they did not exercise a reasonable discretion in selecting a site for such hospital and the plaintiff suffered damage to his property in the immediate vicinity of the site selected by the defendants, they are liable to him for the damages occasioned thereby.</p> <p>“ 5. The defendants as members of the board of health of the city of Everett had no right to establish a hospital within one hundred rods of an inhabited dwelling in the adjoining city of Malden for the treatment of smallpox cases arising in different parts of the city of Everett, and without obtaining the consent of the city of Malden to such location, and if they did establish such hospital within one hundred rods of an inhabited dwelling in the city of Malden without obtaining the consent of the city of Malden to such location they exceeded their powers as members of the board of health, and such location of such hospital was unlawful, and if the plaintiff suffered damage by reason of the proximity of such hospital, the defendants are liable to the plaintiff for the damages occasioned thereby.</p> <p>“ 6. If the defendants in the exercise of a reasonable discretion could have found a suitable site for a hospital, for the general treatment of smallpox cases arising in an epidemic extending over different parts of the city of Everett, and which site would occasion little or no damage to the abutting owners, and they neglected to find such site and arbitrarily established such a hospital in the midst of a populous neighborhood, they were negligent and careless in locating a hospital where they did, and if by reason of such location the plaintiff suffered damage, he is entitled to recover.</p> <p>“ 7. If the defendants were negligent and careless in the conduct and management of the hospital established by them for the treatment of smallpox cases arising in various parts of the city of Everett, and thereby caused damage to the plaintiff, the plaintiff is entitled to recover.</p> <p>“ 8. The location of the hospital in the midst of a populous neighborhood for the general treatment of smallpox cases arising in various parts of the city of Everett, and in an epidemic extending over several months is a nuisance to adjoining property owners, who have suffered damages thereby, and if the plaintiff suffered damage by reason of such location of a smallpox hospital for the general treatment of cases arising in the city of Everett during an epidemic covering several months, the plaintiff is entitled to recover.</p> <p>“ 9. The defendants had no power to execute a lease of the premises on behalf of the city of Everett, and there is no evidence of any lawful taking of those premises by the city of Everett, and there is no evidence that the defendants as a board of health took the premises under the warrant and process provided in the statutes in cases where property may be taken for a smallpox hospital by a board of health, and if they occupied and used the premises for such hospital without lawfully taking them for the purpose, they occupied and used the premises at their peril, and if such occupation and use became a nuisance, causing damage to the plaintiff’s property in the vicinity, he is entitled to compensation for the loss occasioned thereby.</p> <p>“ 10. When the case of the person who fell ill with the smallpox in the house afterwards used as a hospital terminated, and proper precautions had been taken by way of fumigation, etc., to safeguard the public health from danger of smallpox being disseminated from the house, the board of health had exhausted its jurisdiction to treat the house as a hospital, and the subsequent use of the house by them as a hospital for smallpox cases arising elsewhere was unlawful.</p> <p>“ 11. The defendants have not properly or sufficiently proved that they were members of the board of health.”</p> <p>These requests for rulings were refused, and the plaintiff excepted.</p> <p>The presiding judge instructed the jury as follows: “It appearing by undisputed testimony that the defendants were members of, and constituted the board of health of the city of Everett, and they were acting as such in their official capacity in performing the acts complained of in the plaintiff’s declaration, they are not to be held personally liable in this action, unless the acts which they did were unlawful, or were performed in an unlawful manner, or were in excess of their powers as a board of health, and of this there is no evidence in this case, and so I adopt a request made by the defendants and instruct you that there is no evidence to warrant a verdict for the plaintiff, and his action cannot be maintained.” He directed the jury to return a verdict for the defendants, and the plaintiff excepted.</p>

<p>Practice, Civil, Exceptions. Prohibition, Writ of. Municipal Court of the City of Boston. Intoxicating Liquors.</p> <p>Under R L. c. 173, § 106, an exception can be taken to a ruling of a single justice of this court that a petition for a writ of prohibition cannot be maintained and to an order made by him refusing the writ and dismissing the petition.</p> <p>The Municipal Court of the City of Boston has jurisdiction under R. L. c. 168, § 22, to require a debtor arrested on execution to execute and deliver to the judgment creditor a transfer or assignment of any property belonging to him above the amount of $20, which cannot be taken on execution and is not exempt therefrom. Whether a license to sell intoxicating liquors is property which can be made available by an order for such an assignment, quaere.</p> <p>A petition for a writ of prohibition cannot be maintained against the justices of the Municipal Court of the City of Boston to prohibit them from requiring the petitioner under R. L. c. 168, § 22, to assign to his judgment creditor certain licenses to sell intoxicating liquors, as that court has jurisdiction to determine whether the assignment should be ordered or not.</p> <p>A writ of prohibition will not be issued to prohibit a lower court from deciding wrongly a question within its jurisdiction.</p>

<p>Executor and Administrator. Insane Person. Attorney at Law. Practice, Civil, New trial.</p> <p>A person named as executor in a will presented it for probate. After the return day of the citation and the entry of appearances in the Probate Court but before any hearings were held he became insane, and was committed to an insane hospital. He continued to be insane but no guardian was appointed, and no adjudication of his insanity was made other than that on his commitment to the hospital. The will was allowed by the Probate Court. Appeals were taken to the Supreme Judicial Court, notice of the entry of which was mailed to the attorney of the executor named in the will, who continued to act in the case, entered his appearance in the Supreme Judicial Court and represented the executor named in the will in all subsequent proceedings with fidelity and ability. A jury found that the will was procured by undue influence. The executor named in the will by his attorney moved to set aside the verdict on the ground that the proceedings were fatally defective. The presiding justice found as a fact that the claimant under the will suffered nothing from the lack of a formal appointment of a representative of the petitioner. Held, that the service of notice of the entry of the appeals upon the attorney was good and gave the Supreme Judicial Court jurisdiction of the case on appeal; and that the verdict should not be disturbed on account of the informality which did not affect the result.</p> <p>If on the trial of issues framed for a jury on a probate appeal it appears that the petitioner named as executor has become insane, on this fact being called to the attention of the presiding justice the ordinary course of procedure would be for the justice to appoint some proper person to take the place of the petitioner in conducting the proceedings. If, however, the proceedings go on without the disability of the petitioner being brought to the attention of the justice until after a verdict finding undue influence has been returned, but the counsel for the petitioner has continued to represent him with fidelity and ability so that , the beneficiaries under the will have suffered nothing from the lack of a formal appointment, there is no occasion for a new trial.</p>

<p> Equity Pleading and Practice. </p> <p>On an appeal from a decree in equity in a case where the evidence was largely oral the findings' of fact of the judge who heard the case will not be set aside unless they are clearly wrong.</p>

<p> Damages. Evidence. Elevated Railway. Boston Elevated Railway Company. Witness. </p> <p>At the trial of a petition under St. 1894, c. 648, for damages caused by the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, the petitioner has a right to ask a witness, qualified by his special knowledge, what he would say of the street on which the petitioner’s property was situated as a business street before the operation of the road, and may show that by reason of the construction, maintenance and operation of the elevated railway the opportunities for doing business were affected and that the street was affected as a business street. The petitioner also can ask a witness, not an expert in real estate, what he has observed as to the conditions of travel on the street in question since the erection of the structure.</p> <p>At the trial of a petition under St. 1894, c. 648, for damages caused by the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, if it appears that a large hall in a building on the land of the petitioner was used for charitable purposes and was not let for profit either before or after the construction of the elevated railway, it is within the discretion of the presiding judge to refuse to allow the petitioner to go into the question of tlie rental value of the hall before and after the elevated railway was built, and to exclude, the question “ What would be a fair price for the use of the hall during the time it was occupied for these purposes 1 ”</p> <p>At the trial of a petition under St. 1894, c. 548, for damages caused by the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, after the presiding judge has given the petitioner permission to exhibit any dust collected from the outside or the inside of the building on the property alleged to be injured, and to give an analysis of the dust showing how much of it is steel and how much of it is mineral dust and in what period of time the dust was collected, it is within his discretion to refuse to allow the jury to make an examination through a microscope of particles of steel and iron collected from the dust by a magnet.</p> <p>At the trial of a petition under St. 1894, c. 548, for damages caused by the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, the petitioner may show, as bearing upon the market value, after the erection of the respondent’s structure, of his land and a brick building thereon with stores on the ground floor, a hall in the upper stories, and a tenement for a janitor in the rear, where such market value has not been established otherwise, that the inhalation of the particles of steel contained in the dust which comes from the operation of the railway necessarily is detrimental to "health, predisposes a person inhaling the particles to pulmonary affections and probably will affect his general health, and that the noise and vibration caused by the operation of the railway constitute a continuing menace to health and are destructive of the ordinary faculties or senses.</p> <p>At the trial of a petition under St. 1894, c. 548, for damages caused by the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, the petitioner may show that since the erection of the elevated structure in front of his premises the operation of the surface cars has caused more vibration and a louder noise by reason of the reverberation of the sound from the steel of the elevated structure. Following Logan v. Boston Elevated Railway, 188 Mass. 414.</p> <p>At the trial of a petition under St. 1894, c. 548, for damages caused by the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, if the petitioner has testified that after the damage done by the elevated structure the value of his property was only from $7,800 to $10,000, the presiding judge may allow the .respondent, for the purpose of contradicting this testimony of the petitioner, to show that after the erection of the elevated structure the petitioner told his brother to employ real estate agents to sell the property and named $17,000 as the price for which he would be willing to sell it, the weight to be attached to this evidence being a question for the jury.</p>

Contract on two promissory notes signed by the Hampshire and Worcester Street Railway Company as principal and by the defendant and two other persons as sureties whereby they jointly and severally promised to pay in one note $6,000 and in the other note $5,400, both being dated August 19, 1903, and payable to the plaintiff on demand from date without grace, to recover a balance alleged to be due thereon. Writ dated April 18, 1904.

<p>Contract on a judgment obtained in the State of Indiana. Writ dated August 26, 1903.</p> <p>In the Superior Court the case was tried before Wait, J., who at the close of the evidence ordered a verdict for the plaintiff for the amount of the Indiana judgment with interest, and reported the case for determination by this court. If the verdict was ordered properly, judgment was to be entered thereon for the plaintiff; if the direction was wrong, such verdict or judgment was to be entered as justice required.</p>

<p>Wagering Contracts. Survival of Suits. Release. Fraud, As against creditors. Evidence.</p> <p>In an action under R. L. c. 99, § 4, to recover money paid on margins, if an auditor finds “ that it was intended and mutually understood by both parties, upon each and every transaction . . . that there should be no actual' purchase or sale, but that the transaction should be closed by a statement between them based on the rise or fall of the market," this shows an affirmative intention on the part of the plaintiff that there should be no purchase or sale, and on the part of the defendant reasonable cause to believe that such intention existed.</p> <p>A right of action under R. L. c. 99, § 4, to recover money paid on margins survives to the executor or administrator of the estate of the person who paid the money.</p> <p>St. 1901, c. 459, lawfully restricted but otherwise left in force rights of action existing at the time of its passage under St. 1890, c. 437.</p> <p>St. 1890, c. 437, as amended by St. 1901, c. 459, now R. L. c. 99, §§ 4-7, is constitutional.</p> <p>In an action by an administrator with the will annexed under R. L. c. 99, § 4, to recover money paid on margins by the plaintiff's testator, in which the defendant relied on releases signed by the plaintiff’s testator, it was found by an auditor that at the time of making each of the releases, the plaintiff’s testator was deeply insolvent, and that his estate was insolvent to such a degree that the amount sued for if recovered in full would not be nearly enough to satisfy the demands of creditors. Held, that the releases were voluntary conveyances fraudulent as against creditors, and were no defence to the action, although if no rights of creditors had been involved they would have been a good defence.</p> <p>In an action under R. L. c. 99, § 4, to recover money paid on margins, the defendant cannot be allowed to introduce evidence of the defendant’s course of dealing With customers other than the plaintiff where the plaintiff is not shown to have had any knowledge of the defendant’s dealings with others.</p> <p>In an action against a corporation under R. L. c. 99, § 4, to recover money paid on margins, testimony of the defendant’s manager as to his actual undisclosed intention in regard to the delivery of the stocks which the defendant contracted to sell to the plaintiff should be excluded as immaterial.</p> <p>In an action under R. L. c. 99, § 4, to recover money paid on wagering contracts, the defendant under a declaration in set-off may recover from the plaintiff money similarly paid by the defendant to the plaintiff on other wagering contracts during the same period if the payments were made on contracts to sell securities to the plaintiff or to buy securities from him and the defendant was not employed merely as a broker to buy or sell for the plaintiff’s account.</p>

<p>Contract by the trustees under the will of John Rayner, owners of the building numbered 43 and 45 on Hanover Street in Boston, against the Rust and Richardson Drug Company, a corporation, for a balance alleged to be due under a covenant in a lease by which the defendant agreed to be responsible until the end of the term for any loss or diminution of rent sustained by the plaintiffs in consequence of a termination of the lease by the plaintiffs by an entry for a breach of covenant. Writ dated January 2, 1903.</p> <p>At the trial in the Superior Court before White, J. it appeared that the lease was terminated by an entry for a breach of covenant and that possession was regained by the plaintiffs in the manner stated in the opinion.</p> <p>The first, fourth, seventeenth and eighteenth rulings requested by the defendant and refused by the judge, which are mentioned but not quoted in the opinion, were as follows:</p> <p>“1. That on all the evidence the plaintiff is not entitled to recover.”</p> <p>“ 4. If the jury find that the plaintiffs made an entry on the premises on April 6, 1901, for the purpose of terminating the lease under which the defendant was then occupying said premises, such an entry would terminate the tenancy of the defendant and for anything happening thereafter the defendant if liable in this action at all, is not liable on the ground of being a tenant.”</p> <p>“ 17. After the entry of April 6, 1901, the plaintiffs, if they seek to recover in this action, were bound, for the remaining time covered by defendant’s responsibility for deficiency in rentals, to accept any proper tenant. Their right to refuse tenants was very much less than if they were not seeking to charge the defendant in this action, and could be exercised only for good and sufficient reasons. Any proper tenant they were bound to accept. And for moneys lost during that time by refusals of proper tenants the plaintiffs have no right of action against the defendant. In determining what is a proper tenant the jury will take into consideration the character and location of the premises in question, the character and location of the neighborhood, the uses to which premises in that neighborhood were being put and all other similar circumstances. And on the question of financial responsibility, if the jury find that a prospective tenant was satisfactory financially to the defendant, that is enough, and will preclude the plaintiffs from objecting on that ground. If the jury find that the defendant offered, or the plaintiffs knew of, a tenant or tenants who, tested by the above rules, should have been accepted by the plaintiffs, but was not, then the plaintiffs cannot recover of the defendant any moneys to which, during the balance of the defendant’s term, they would have been entitled had such tenant been accepted.</p> <p>“ 18. After the entry of April 6, 1901, the plaintiffs, if they seek to recover in this action, were bound, for the remaining time covered by the defendant’s responsibility for deficiency in rentals, to accept any proper tenant. Their right to refuse tenants was very much less than if they were not seeking to charge the defendant in this action, and could be exercised only for good and sufficient reasons. Any proper tenant they were bound to accept. And for moneys lost during that time by refusals of proper tenants the plaintiffs have no right of action against the defendant. In determining what is a proper tenant the jury will take into consideration the character and location of the premises in question, the character and location of the neighborhood, the uses to which premises in that neighborhood were being put and all other similar circumstances. And on the question of financial responsibility, if the jury find that a prospective tenant was satisfactory financially to the defendant, that is enough, and will preclude the plaintiffs from objecting on that ground. If the jury find that the defendant offered, or the plaintiffs knew of, a "tenant or tenants who, tested by the above rules, should have been accepted by the plaintiffs, but was not, then the plaintiffs cannot recover of the defendant in this action.”</p> <p>The judge refused to give the first ruling and declined to give the fourth, seventeenth and eighteenth rulings in the form requested, except so far as given or covered by the charge to the jury. The fourth ruling requested was given by the judge with the modification quoted in the opinion. The general purport of the judge’s charge upon the subject of the seventeenth and eighteenth rulings requested is stated in the sentence quoted in the last paragraph of the opinion.</p> <p>The jury found for the plaintiffs in the sum of $2,057.92, which was the difference between the rent reserved under the lease and the amount actually received by the plaintiffs, with interest; and the defendant alleged exceptions.</p>

<p>Marriage and Divorce. Domicil. Words, “Lives.”</p> <p>If after a husband has committed adultery his wife, deceived by his false statements and having no knowledge of his adultery, continues to live with him until she discovers the truth, when she ceases to cohabit with him, and on his again committing adultery leaves him permanently, there is no condonation of the earlier adultery, which still remains as a cause for divorce.</p> <p>If after a husband has committed adultery his wife, relying wholly or in part on false statements made by him, condones his offence upon his implied promise to be faithful to her thereafter, and afterwards the husband again commits adultery, tlie wife may withdraw her condonation and maintain a libel for divorce founded on the earlier adultery.</p> <p>Under R. L. c. 152, § 4, a divorce cannot be granted in this Commonwealth for a cause which occurred in another State when the husband and wife were living together in that State, except where the libellant has lived in this Commonwealth for the five years or three years last preceding the libel as provided in § 5 of the same chapter.</p> <p>In R. L. c. 152, § 6, providing that, with a certain exception, " libels for divorce shall be filed, heard and determined in the Superior Court held for the county in which one of the parties lives,” semble, that the word “ lives ” is equivalent to “ has a domicil.”</p> <p>A wife who leaves her husband in another State for a justifiable cause may establish a separate domicil in this Commonwealth for the purpose of maintaining a libel for divorce within the requirement of R. L. c. 152, § 6, that the libel shall be filed in the Superior Court held for the county in which one of the parties lives.</p>

<p>Petition under Pub. Sts. c. 192, § 17, to enforce a lien upon a schooner called the Adelaide Barbour for labor and materials alleged to have been furnished in her construction, inserted in a common law writ dated August 31, 1901, returnable on the first Monday of October in that year.</p> <p>In the Superior Court the service of process was as stated in the opinion. The respondent Carrier appeared generally and filed an answer. The respondent Tilton entered a special appearance and filed a- motion to dismiss. The special precept mentioned in the opinion was authorized by the court and was served as there stated. The respondent Tilton filed a motion to dismiss and a plea in abatement, the last containing among other reasons the following:</p> <p>“Fifth. That no attachment of said vessel has ever been made as in a proceeding in rem against said vessel but the only attachments which have been made in said proceeding have been made on said vessel as the property of William S. Currier and William E. Tilton as in an action of law to respond to a judgmenfc in personam for damages and has not been made on any order for the attachment of said vessel in the manner provided by Pub. Sts. c. 192, § 17.”</p> <p>Bishop, J. denied the motions to dismiss and overruled the plea in abatement. The respondent Tilton alleged exceptions and appealed.</p> <p>Later the respondent Tilton made a motion before BeCouroy, J. that for want of a legal attachment the proceedings be continued until a valid attachment had been made. This motion was denied by the judge; and the respondent Tilton alleged exceptions and appealed.</p> <p>The respondent Tilton then demurred to the petition alleging among other causes of demurrer the following:</p> <p>“Fifth. That the petitioner’s proceeding is in manner and form an action at law in personam against William S. Currier and William E. Tilton as defendants, and not a proceeding in rem for the enforcement of a lien against a vessel in the manner and form as required by the statutes of the Commonwealth of Massachusetts in force at the time of the bringing of said proceedings.”</p> <p>The judge overruled the demurrer; and the respondent Tilton alleged exceptions.</p> <p>The respondent Tilton then filed an answer and the case was tried on the merits before G-ashill, J., without a jury, the only evidence presented at the trial being the report of Jeremiah Smith, Jr., Esquire, to whom the case had been referred as auditor. The auditor found and reported that the petitioners were entitled to a lien upon the schooner Adelaide Barbour in the sum of $700, with interest from August 31,1901, the date of the commencement of the. proceedings.</p> <p>At the close of the evidence the respondent Tilton filed a further motion to dismiss as follows:</p> <p>“ Now comes the respondent Tilton in the above entitled cause, and without waiving any motions, pleas or other defences heretofore taken, moves that the same may be dismissed for want of jurisdiction of this court of the subject matter, because on the evidence the subject matter is within the exclusive admiralty jurisdiction of the United States courts and is not within the jurisdiction of this court.”</p> <p>This motion was denied and the respondent Tilton appealed from the order denying the motion and also excepted thereto.</p> <p>The respondent Tilton also requested the court to make the following rulings:</p> <p>“ First. That on all the evidence the petitioners are not entitled to recover and the petition must be dismissed.</p> <p>“ Second. That on the record and the evidence the petitioners are not entitled to judgment against the respondent Tilton or the schooner Adelaide Barbour on their petition in manner and form as set forth in this proceeding, and the petition must be dismissed against the respondent William E. Tilton.</p> <p>“ Third. That the petitioners have not taken such proceedings as entitle them to a judgment or decree on their petition against the schooner Adelaide Barbour or the respondent William E. Tilton.</p> <p>“Fourth. The evidence in this case is not such as to warrant a judgment or decree against the respondent William E. Tilton or the schooner Adelaide Barbour on the petition in manner and form as set forth in this proceeding.</p> <p>“ Fifth. That the statement filed by the petitioners in the city clerk’s office at Newburyport is not sufficient to warrant a judgment in their favor on the evidence on their petition in the manner and form set forth in this proceeding.</p> <p>“Sixth. That the subject matter of this proceeding is on the evidence not within the jurisdiction of this court, but within the exclusive admiralty jurisdiction of the United States District Court.</p> <p>“ Seventh. That the enforcement of the petitioner’s lien in so far as it is based on a quantum meruit arising from the placing of goods on board the vessel after she was launched is a matter within the exclusive admiralty jurisdiction and not within the jurisdiction of this court.</p> <p>“ Eighth. That there has been no process in this case which is sufficient in law to bring the vessel Adelaide Barbour or the respondent Tilton within the jurisdiction of this court for the entry of a judgment or decree against said vessel or the respondent Tilton.</p> <p>“Ninth. That there has been no attachment of the vessel Adelaide Barbour sufficient in law to bring her before this court or within its jurisdiction for the entry of any judgment or decree against her or the respondent Tilton.”</p> <p>The judge refused to make any of these rulings and ordered that judgment be entered for the petitioners as follows:</p> <p>“ And now after fully hearing the parties and their evidence, and it appearing to the court that the said schooner Adelaide Barbour has been taken away from the jurisdiction of this court by the respondent Tilton, so that the said schooner cannot be sold as prayed in the petition; and it further appearing that a bond has been filed in this suit conditioned to pay to the petitioners the amount for which a lien shall be established in this suit against said schooner.</p> <p>“It is adjudged that the petitioners have established a lien upon the said schooner Adelaide Barbour, her tackle, apparel and furniture in the sum of $700, and $170.10 interest, and costs as the same shall be taxed by the clerk.”</p> <p>The respondent Tilton alleged exceptions.</p>

<p>Pledge. Bills and Notes. Practice, Civil. Evidence, Proof of foreign law.</p> <p>A creditor who holds as security the promissory note of a third person given to the debtor for his accommodation and indorsed by the debtor to the creditor, and also holds as collateral other security given to him by the debtor, need not exhaust the other security before suing on the note.</p> <p>In an action by the indorsee of a promissory note against the maker, it appeared that the note was given by the maker to the payee, a corporation, for its accommodation and was indorsed and delivered by the payee to the plaintiff as collateral security for the indebtedness of the payee to the plaintiff under a certain contract, and that the plaintiffs right to recover depended on whether anything was due to the plaintiff from the payee under this contract and if so how much was due. A clerk of the plaintiff, who also was assistant treasurer of the payee, testified that a large balance was due to the plaintiff from the payee under the contract, and there was no direct evidence to meet this, although the defendant contended that the testimony of this witness was weakened by circumstances which appeared in evidence. The presiding judge ordered a verdict for the plaintiff. Meld, that, although if the jury believed the testimony at the trial they would have been required to find a verdict for the plaintiff, yet the question was one of fact and the burden was on the plaintiff to show that he was a holder for value, and the case should have been submitted to the jury.</p> <p>Where the law of another State is material for the purpose of showing whether a certain contract was usurious and the only evidence of the law of the other State introduced at the trial consisted of certain statutes, this court cannot consider decisions of the courts of that State cited at the argument upon the question of what the law of that State is.</p>

<p>Tort for personal injuries from an electric car of the defendant running into a four horse furniture team which the plaintiff was driving in the daytime of April 22, 1903. Writ dated March 11, 1904.</p> <p>At the trial in the Superior Court before Harris, J. the defendant at the close of the evidence asked the judge to make among others the following rulings:</p> <p>“1. Upon all the evidence the plaintiff is not entitled to recover.</p> <p>“2. There is no sufficient evidence that the plaintiff was in the exercise of due care, and he cannot recover.</p> <p>“ 3. There is no sufficient evidence of negligence on the part of the defendant, and the plaintiff cannot recover.”</p> <p>“ 6. To listen when, under the circumstances, one would not hear and could not have expected to hear an approaching danger is not due care.</p> <p>“ 7. If the plaintiff did not look for a car coming upon him from the rear, and, because of the noise made by his own team, could not have heard such a car without stopping, and did not stop, he was not in the exercise of due care and cannot recover.” The judge refused to make any of these rulings, and submitted the case to the jury, who returned a verdict for the plaintiff. The defendant alleged exceptions.</p>

<p>Accord. Evidence, Extrinsic affecting writings.</p> <p>The parties to an action in the State of Illinois having settled the case signed the following instrument: “ It is hereby agreed by and between the parties to this suit that the above entitled cause be dismissed without costs and the garnishee be discharged.” About ten years later the defendant in the Illinois action brought an action of tort in this Commonwealth against the plaintiff in the Illinois action, for alleged abuse of legal process in making a false affidavit that the plaintiff had fraudulently conveyed or concealed his property in order that under the law of Illinois a writ of attachment might issue. The defendant contended that the agreement of settlement between the parties covered all causes of action then existing between them and was a bar to the action of tort in this Commonwealth. There was evidence that at the time of the settlement the plaintiff said to the defendant that he could put him in jail for making the affidavit, and that the defendant said that his lawyer took the proceedings, and he did not know anything about it. Held, that the instrument signed by the parties was in the nature of a memorandum as to the disposition of the Illinois action rather than a contract, so that the intended scope and effect of the agreement of settlement could be shown by oral evidence, and that the conversation quoted above together with the other evidence in the case warranted a finding that the settlement included all causes of action between the parties existing at the time it was made.</p>

Tort as stated below. Writ dated July 10, 1905. The declaration alleged that on or about April 8, 1905, the defendant represented to the plaintiffs that she was the owner of certain real estate situated in Cambridge, in the County of Middlesex, and that she was legally competent to sell, and was desirous of selling, the same, and to induce the plaintiffs to enter into an agreement in reference to the purchase of the same, the defendant falsely and fraudulently represented to…

Contract, by the administratrix of the estate of John J. Holden, late of Boston, on a policy of life insurance issued by the defendant, a corporation organized under the laws of the State of New Jersey, on the life of the plaintiff’s intestate. Writ dated October 3,1902. In the Superior Court the case was tried before Harris, J. No copy of the application for insurance was annexed to the policy.

Contract or tort, with four counts, against a national bank, for money paid by the defendant upon a forged indorsement of a check drawn by the plaintiff upon the defendant and charged to the plaintiff’s account. Writ dated March 20,1903. The following is a copy of the check with the indorsements thereon: “ Boston, Mass., Sept. 14, 1900.

<p>Libel filed September 26, 1904, under R. L. c. 151, § 11, by a woman who after having obtained a divorce from the libellee had married him again, for a decree of nullity of marriage on the ground that the second marriage was void under R. L. c. 152, § 21, because contracted by the libellee within two years after the decree against him for divorce had become absolute.</p> <p>In the Superior Court Bell, J. ruled that the prohibition of R. L. c. 152, § 21, did not apply to a remarriage between the former husband and wife, and at the request of the libellant reported the case for determination by this court. If the ruling was correct the libel was to be dismissed; otherwise, a decree annulling the marriage was to be entered.</p>

Contract against the indorser of a promissory note. Writ dated June 6,1904. In the Superior Court the case was submitted to Harris, J., upon an agreed statement of facts. The note sued upon was as follows: “ $600. Middleboro, Mass., Jan. 12,1904. “Four months after date we promise to pay to the order of A. B. Cole Six hundred Dollars at the Middleborough National Bank. Value received. “ Old Homestead Brooder Co., “ A. B. Cole, “ Due May 12.

<p> Devise and Legacy. </p> <p>A testatrix gave by her will a house and land worth $15,000 and $50,000 in money or securities, in trust for the benefit of her two sisters during their lives and on the death of the survivor of them to “ pay out of the trust fund ” certain legacies to persons and institutions amounting in all to $59,000. By a codicil the testatrix directed that the house and land included in the trust after the decease of her two sisters should be sold and the proceeds equally divided between two cousins of the testatrix named. The codicil then provided as follows: “ Should it so happen, that after paying all expenses and dues, and delivering sundry gifts of my private personal effects, there should not be sufficient money left from the saleable portions of my estate, to pay the full amount of the sums given and bequeathed to sundry persons and Institutions, as enumerated in my Will and Codicil, then my will is, that said recipients shall each receive a pro rata as will equalize the distribution of the Amounts.” The will contained a residuary clause. After paying debts and legacies including the $50,000 for the trust above named the executors had in their hands about $20,000, and brought a bill for instructions as to whether the whole of this should be distributed to the residuary legatees or whether they should retain in their hands a sufficient amount to pay with the $50,000 in the trust the $59,000 of legacies payable upon the death of the testatrix’s two sisters. Held, that the testatrix by the provision in her codicil intended to place all of the legatees under the will and codicil, except those to whom specific legacies were given, upon an equal footing, and the executors were ordered to retain out of the funds in their hands a sufficient sum to pay in full the deferred legacies when they became payable.</p>

<p>Contract, Construction. Agency. Equity Jurisdiction. Words, “ Special agent.”</p> <p>A contract between a corporation engaged in manufacturing and selling patterns for all kinds of garments worn by women and children and a firm of dry goods merchants gave the merchants the right to act as “ special agent ” of the corporation for the sale of its patterns in a certain city for a period of two years, and provided that the merchants should “ endeavor at all times to conserve the best interests of the agency.” Held, that there was no obligation on the part of the merchants not to act as the agents of other pattern manufacturers in the city in question during the period of the contract.</p> <p>A bill in equity alleged that the plaintiff, a corporation engaged in manufacturing and selling patterns for women’s and children’s garments, made a contract in writing with the defendants, a firm of dry goods merchants, by which the defendants were to act as the plaintiff’s “ special agent ” in a certain city for two years, to buy the plaintiff’s patterns, to keep them on their ground floor with proper attention by an attendant, and “ to endeavor at all times to conserve the best interests of the agency,” that the defendants were engaged in the sale of patterns of a competitor of the plaintiff and were not handling or selling the plaintiff’s patterns hut were seeking to prejudice their customers against the plaintiff’s patterns; and prayed that the defendants might he enjoined from advertising or selling the patterns of the plaintiff’s competitor. On demurrer to the bill for want of equity, it was held, that the plaintiff’s remedy, if any, was at law and not in equity.</p>

<p>Bill in equity, filed in the Probate Court for the county of Suffolk on April 27, and amended on May 22, 1905, by the trustees under the will of Gideon Skull Holmes, late of Boston, for instructions as to the distribution of a trust fund, under the provision of that will which is quoted in the first paragraph of the opinion, upon the death of Sarah T. Coates, a daughter of the testator who had enjoyed the income of the fund during her life, and who died on December 19,1904, leaving seven children and one grandchild, Emma Burton, the minor daughter of Elizabeth Coates Burton, one of the seven children of Sarah T. Coates still living.</p> <p>In the Probate Court Q-rant, J. made a decree that the fund be distributed among the children of Sarah T. Coates per stirpes to the exclusion of the grandchild Emma Burton, the daughter of a living child. Emma Burton by George. L. Huntress, her guardian ad litem, appealed.</p> <p>The case came on to be heard before Lathrop, J., who reserved it upon the petition as amended and the answers for determination by the full court, such decree to be entered therein as justice and equity might require.</p>

<p>Contract upon a guaranty in writing against loss on account of a purchase of certain stock given by the defendant to the plaintiff’s testatrix. Writ dated May 7, 1903.</p> <p>The contract declared on was as follows :</p> <p>“ Memorandum of Agreement made and entered into on this 31st day of January, A. D. 1899, by and between W. H. Emery of Boston in the Commonwealth of Massachusetts, party of the first part, and Emma L. Phillbrook, also of said Boston, party of the second part.</p> <p>“ Witnesseth:</p> <p>“ Whereas the said Emma L. Phillbrook has purchased of said W. H. Emery, five thousand (5000) shares of the capital stock of the Granite Mountain Gold Mining Company, for the sum of two thousand dollars ($2000) and the said W. H. Emery, in consideration of mutual agreements herein contained, hereby and does by this agreement guarantee the said Emma L. Phillbrook against loss of principal on said purchase of said stock; and does further agree, at the expiration of one year from the date of this agreement, to repurchase said stock from said Emma L. Phillbrook for the sum of two thousand dollars (2000.)</p> <p>“Provided, however, that at the expiration of said term of one year should said stock have advanced in value and be at that time worth any sum in excess of two thousand dollars ($2000), said Emma L. Phillbrook hereby agrees to sell the same, or cause it to be sold, and to pay to said W. H. Emery, as a consideration for his guaranty against loss of principal on the investment, a sum equal to one half of the proceeds of said sale in excess of the sum of two thousand dollars ($2000) ; or, the said Emma L. Phillbrook may, at her option, keep the said stock and pay to said W. H. Emery, a sum equal to one half the market value of said stock in excess of said sum of two thousand dollars ($2000).</p> <p>“ In witness whereof the said parties have hereunto set their hands and seals on the day and year above written to this agreement and also a duplicate thereof.</p> <p>“W. H. Emery. (Seal)</p> <p>Emma L. Philbrook.” (Seal)</p> <p>“ The foregoing agreement is hereby extended to January 31st, 1903, by mutual consent.</p> <p>“ W. H. Emery.</p> <p>Emma L. Philbrook.”</p> <p>In the Superior Court the case was submitted to Hardy, J. upon an agreed statement of facts.</p> <p>It was agreed that the plaintiff’s testatrix and the defendant executed the above agreement on or about January 31, 1899; that on or about March 1, 1902, without any new or further consideration except the mutuality of the consent, the defendant and the testatrix signed the undated statement at the bottom of the agreement; that the testatrix Emma L. Phillbrook died on December 26, 1902, and the plaintiff was appointed the executor under her will on January 19, 1903; that on January 31, 1903, the stock mentioned in the agreement was not readily salable and had no value in the open market, which condition of affairs continued to the date of the plaintiff’s writ; that on or about March 30, 1903, the plaintiff demanded of the defendant the payment of $2,000 which he claimed from the defendant on account of the defendant’s guaranty to the plaintiff’s testatrix; “ that the plaintiff was not personally guilty of laches in making such demand or in the bringing of his writ ”; and that if the defendant was liable to the plaintiff at the time of his demand, upon the guaranty contained in the agreement and the extension thereof and upon the facts agreed, judgment might be entered for the plaintiff in the sum of $2,000 ; if the defendant was not so liable, judgment was to be entered for the defendant.</p> <p>Upon these facts the judge ordered judgment for the plaintiff in the sum of $2,000, and reported the case for determination by this court.</p>

<p> Execution. Executor and Administrator. Attachment. </p> <p>Under our statutes one who obtains an execution on a judgment against an executor or administrator on a debt of the deceased can levy on real estate of the deceased standing in the name of a purchaser from an heir or a devisee.</p> <p>The release of an attachment of real estate by a plaintiff does not impair his right to levy execution on the same real estate either before or after the death of the defendant.</p>

<p>Equity Jurisdiction, For an accounting, Discovery. Agency. Broker. Equity Pleading and Practice, Bill.</p> <p>In order to maintain a bill in equity for an accounting it must appear from its specific allegations either that there was a fiduciary relation between the parties or that the account is so complicated that it cannot be conveniently taken in an action at law.</p> <p>The ordinary pecuniary relation between a stockbroker and his customer is not a fiduciary one but that of debtor and creditor.</p> <p>In a bill in equity against a firm of stockbrokers for an accounting, an allegation that “ the plaintiff relied upon the knowledge and experience of the defendants in regard to buying and selling stocks . .'. and employed the defendants as his brokers in order to avail himself of said peculiar knowledge and experience ” does not state a fiduciary relation between the parties.</p> <p>In a bill in equity against a firm of brokers for an accounting, an averment that “ owing to the number of said transactions, it is impossible for the plaintiff to state with certainty how much the defendants now owe ” but that a large amount is due to him upon a proper accounting, does not allege either in form or substance that the accounts are so complicated that they cannot be conveniently adjusted in an action at law.</p> <p>In this Commonwealth a bill in equity cannot be maintained for discovery alone.</p>

<p> Corporation. Agency. Summary Process for the Possession of Real Estate. </p> <p>In a summary process brought under E. L. c. 181 by a corporation for the possession of certain real estate mortgaged to the plaintiff and conveyed to it by a purchaser at a foreclosure sale under the mortgage who acted as the plaintiff’s agent in buying in the property, it appeared that the deed given to the purchaser at the foreclosure sale was executed by the plaintiff’s president in the name of the plaintiff as mortgagee, that a vote of the plaintiff’s board of directors authorized the president to foreclose mortgages and if foreclosed by sale to execute in the plaintiff’s name the necessary deeds subject to the approval of a member of the finance committee, that such approval was indorsed on the deed by a member of that committee after it had been delivered and recorded and after the action had been brought and the case had been tried in a police court and was pending in the Superior Court on appeal. The bringing of the action was found to have been the act of the corporation. Held, that by bringing the action the corporation ratified the act of its president and made the deed good, so that it was not necessary to decide whether the indorsement of the deed by the member of the finance committee had the effect of a ratification.</p> <p>The president of a life insurance company has not by virtue of his office authority to foreclose a mortgage belonging to the company or to execute a deed of the mortgaged property after a foreclosure sale, although the company has no officer known as treasurer.</p> <p>In a summary process under R. L. c. 181 for the possession of real estate conveyed to the plaintiff by its purchaser at a foreclosure sale under a mortgage, if the plaintiff shows that there was a breach of a condition of the mortgage followed by a foreclosure sale strictly in accordance with the terms of the power given by the mortgage, he is entitled to judgment for the possession of the property, and the defendant cannot be allowed to show that the price bid and accepted at the foreclosure sale was unfair. If the defendant seeks to reopen the foreclosure on the ground of fraud he must resort to a court of equity for affirmative relief.</p>

<p>Religious Society. Adverse Possession. Evidence. Equity Jurisdiction, To remove cloud from title. Equity Pleading and Practice, Amendment, Decree.</p> <p>By St. 1811, c. 6, § 3, many times re-enacted and still in force in R. L. c. 37, § 12, an unincorporated religious society can acquire, use and enjoy property in the same manner as if incorporated, and therefore by a continuous adverse possession of twenty years can acquire a title to real estate by limitation.</p> <p>For the purpose of showing that under the successive statutes re-enacting St. 1811, c. 6, § 3, now R. L. c. 37, § 12, an unincorporated religious society had acquired by a continuous adverse possession of twenty years a title to certain land by limitation, entries from the record book of the society are admissible to show its original organization and a vote to purchase the land in question and to erect a house of worship thereon, and if the entries in the record book are certified to by a deacon of the church as clerk of the meetings, to whom in his own name a deed of the land in question was made immediately after the vote of the society to purchase it, the record is relevant to establish the fact that in taking the deed of the land in his own name he was .acting in behalf of the society and was not purchasing it for himself.</p> <p>If an unincorporated religious society votes to purchase certain land and to erect a house of worship thereon, and a conveyance of the land is made to one who is a member and communicant of the society, and thereafter the society builds a meeting house on the land and occupies it continuously under a claim of right, the fact that the grantee of the land is a regular attendant upon divine worship at the meeting house does not show a use of the property by him in common with the society so that it can be said that there is a mixed possession, for his attendance is as a member and communicant of the society and not as an owner of the land.</p> <p>Land belonging to an unincorporated religious society does not pass by a deed executed by the trustees of the society which in its recitals, covenants, execution and acknowledgment purports to be the act of the trustees as such and not the act of the society holding the title to the land under the statutes re-enacting St. 1811, c. 6, § 3, now R. L. c. 37, § 12.</p> <p>A suit in equity to remove a cloud from the title to real estate cannot be maintained unless the plaintiff has both the actual possession of and the legal title to the land in question.</p> <p>In a suit in equity by an incorporated religious society, claiming under a deed from the trustees of an unincorporated religious society, to remove a cloud from the title of certain land of which it is alleged that the plaintiff is entitled to the fee, if it appears that the plaintiff would be entitled to the relief sought if it had a confirmatory deed from the unincorporated society but that otherwise its title is defective because the trustees of the unincorporated society had undertaken to make the conveyance from themselves instead of in behalf of the society and the title was not in them, an amendment in the nature of a supplemental bill may be allowed under Equity Rule 25, after the plaintiff has obtained a confirmatory deed from the unincorporated religious society, and if this is done a decree may be entered giving the plaintiff the relief sought, although otherwise the bill would be dismissed.</p> <p>In a suit in equity to remove a cloud from the title to certain land which the plaintiff claims in fee, an agreement at a hearing of the case before a master that “ it is admitted by both parties for the purpose of the trial that the title to the land in dispute is in the defendant, if it should be decided that the plaintiff is not the owner,” adopted for the purpose of relieving the defendant from making further proof of title, does not prevent the court from making a conditional order that the plaintiff may have a decree for the relief sought in case he perfects his title by obtaining a certain confirmatory deed and thereafter amends his bill under Equity Rule 25.</p> <p>When in a suit in equity to remove a cloud from the title to land under R. L. c. 182, §§ 6-10, persons are made defendants who are described as the heirs at law or legal representatives unknown to the plaintiff of a former owner of the land long since deceased, and after due notice such persons fail to appear, the case as to them is not ripe for final disposition until after an interlocutory decree has been made ordering that the bill be taken for confessed as against them.</p>

<p> Probate Court. Contract. Executor and Administrator. Evidence. </p> <p>The widow and all of the adult children of an intestate made an agreement in writing under seal for the settlement and distribution of his estate, by the terms of which the widow was to be appointed administratrix. A minor child of the intestate, although mentioned in the agreement, was in no way a party to it. The administratrix filed an inventory, to which no objection was made, and an account to which some of the heirs objected. There was a hearing on the account and it was allowed in a modified form. On appeal from the decree, it was held, that the agreement did not oust the Probate Court of its jurisdiction to settle the account.</p> <p>A promise under seal is binding without consideration.</p> <p>Where, under an agreement in writing between the widow of an intestate and all of his adult children, the widow has been appointed administratrix of his estate and, having settled the estate substantially in accordance with the terms of the agreement, has filed in the Probate Court an account stating the distribution of the property made by her, which is allowed as her final discharge under R. L. c. 150, § 20, and where on an appeal by some of the adult children of the intestate the decree allowing the account is confirmed, this decree will not be disturbed because of informalities in the account not affecting the rights of the appealing parties, and the account may be treated as if allowed after a formal decree of distribution.</p> <p>An agreement in writing under seal was made between the widow and all of the adult children of an intestate by which the widow was to be appointed administratrix, was to receive a certain farm, live stock and farming implements of the intestate at a valuation stipulated in the agreement, and was to assume and pay certain notes made by one of the adult children and indorsed by the intestate. At the hearing of an appeal from a decree of the Probate Court allowing the account of the widow as administratrix, it having been shown that she bad paid the notes assumed by her under the agreement, evidence, offered by the appellants to show that the value of the farm and personal property conveyed to and received by the widow under the agreement was underestimated as an inducement to her to assume the payment of the notes, was excluded. Held, that the evidence properly was excluded as irrelevant.</p>

<p>Devise and Legacy. Joint Tenants and Tenants in Common. Words, “In equal shares and proportions.”</p> <p>A testator gave the residue of his property to a trustee, directing him to pay over the net income “to my children, and grandchildren now living, or who may be living at the time of my decease in equal shares and proportions, for and during the natural life of each of my said children. Upon the decease of the last surviving one of my children, I direct my trustee, or whoever shall then be my trustee, to convey all the remaining part of my estate hereinbefore conveyed to him, together with any income of the same, remaining in his hands, to the heirs and legal representatives of my deceased children, in equal shares, according to the number of my deceased children so represented, such heirs and legal representatives taking by way of representation, and not according to their number.” At the time of the execution of the will and.at the time of his death the testator had three children and two grandchildren living. One of the children thereafter died leaving a widow but no issue. On a bill filed by the trustee for instructions as to the distribution during the existence of the trust of the share of the income formerly paid to the deceased child, it was held, that the gift of the income was to the children and grandchildren of the testator living at his death and their survivors, these children and grandchildren taking as a class and not as tenants in common, and that the legal representative of the deceased child was excluded from the distribution.</p>

<p>Practice, Civil, New trial, Exceptions. Rules of Court. Constitutional Law. Damages. Boston Elevated Railway Company. Evidence, Opinion: experts, Res gestae.</p> <p>Under R. L. c. 173, § 112, and Rule 44 (now Rule 41) of the Superior Court, a judge of that court, after denying a motion for a new trial, has no power to order a new trial on a ground not covered by the motion.</p> <p>R. L. c. 173, § 112, providing that “ a verdict shall not be set aside except upon a motion in writing by a party to the cause, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court,” is constitutional.</p> <p>Where a judge of the Superior Court, after denying a motion for a new trial, makes an order for a new trial which is void because upon a ground not stated in the motion and without notice to the adverse party, if the. party desiring the new trial moves to amend his motion by adding a statement of further reasons which if incorporated in the original motion might have justified the order of the court, and this motion is denied by the judge, the last motion denied can have no effect to cure the invalidity of the order, and the court is not called upon to consider what the effect of the amendment wo.uld have been if allowed.</p> <p>Where two petitions claiming damages to real estate under a statute are consolidated by an order of court and are tried together as one case, and the counsel originally appearing for the first petitioner, although he does not appear for the second of record, conducts the trial on behalf of both of the petitioners, opening the case, examining the witnesses and arguing the case to the jury, and the counsel of record for the second petitioner, who is present in court, consults with the counsel for the first petitioner and attends at all consultations at the bench, the question, whether a notice of a motion for a new trial, given to the counsel conducting the trial but not to the counsel for the second petitioner, is sufficient under Rule 41 (formerly Rule 44) of the Superior Court, here was not passed upon because immaterial, the motion having been denied.</p> <p>At the trial of a petition under St. 1894, c. 548, §§ 8, 9, for damages to the petitioner’s property from the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, if it is competent to show a diminution of the value of the property for the purpose of borrowing upon it by mortgage, as tending to show a diminution in its market value, which was doubted, this cannot be shown by testimony of an owner of the property that an opinion formed by him, that there was a change in the mortgage market in regard to property abutting on the elevated railway, was based upon the fact that after the construction of the railway he was unable to obtain from other parties a loan upon a mortgage of the property for an amount which a certain trust company had lent upon it before the construction of the railway.</p> <p>An expert cannot be allowed to give as a ground for his opinion matters which otherwise would be incompetent as evidence, although such matters properly might have been admitted on his cross-examination to test and diminish the weight to be given to his opinion.</p> <p>When evidence has been admitted against the objection and exception of the adverse party, that party does not waive his exception by failing to except to a portion of the charge of the presiding judge which leaves this evidence to the jury in a manner which is proper if the evidence is competent.</p> <p>At the trial of a petition under St. 1894, c. 548, §§ 8, 9, for damages to the petitioner’s property from the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, a lessee of a portion of the property was allowed to testify against the respondent’s exception that on one or two occasions when persons had come for dinner into the restaurant which he kept in the part of the premises leased to him he had heard them say “ Oh, we can’t talk here; let us get out of here, and eat somewheres where we can talk and hear ourselves,” and that they would get up and go out. Held, that the evidence was competent as a statement accompanying the act of the customers in leaving the restaurant which showed the character of that act, and properly might be considered in determining the effect of the noise caused by the operation of the respondent’s railway.</p> <p>An exception not argued will be treated as waived.</p> <p>On a petition under St. 1894, c. 548, §§ 8, 9, for damages to property from the construction, maintenance and operation of the elevated railway of the Boston Elevated Railway Company, no person can recover whose title or interest was acquired after the beginning of the construction of the elevated structure in front of the property alleged to be damaged. Following Bates v. Boston Elevated Railway, 187 Mass. 328.</p> <p>Where several petitions claiming damages to real estate under a statute are consolidated by an order of court and are tried together as one case, and the counsel originally appearing for some of the petitioners appears in court, although not of record, for all of them and tries the case, notice to him of the filing of exceptions by the respondent is good against all the petitioners.</p>

<p> Bond. Attachment. Master in Chancery. Mandamus. </p> <p>Under R. L. c. 167, §§ 121,123, a master in chancery who, on an application for the approval of a bond to dissolve an attachment of real estate, has appointed three appraisers to value the property attached and has received their report in writing, is bound by their report and cannot hear further evidence to increase or diminish the value they have fixed.</p> <p>Whether under R. L. c. 167, §§ 121,123, in fixing the amount of a bond to be given to dissolve an attachment upon real estate the amount due on a mortgage upon the attached property can be deducted from its value, quaere.</p> <p>A writ of mandamus will be granted to compel a master in chancery to proceed in accordance with law in fixing the amount of a bond to be given to dissolve an attachment of real estate and to disregard evidence as to the value of the attached property other than the report of the appraisers appointed by him under R. L. c. 167, § 121, whose valuation is conclusive upon him.</p>

<p> Corporation. Equity Jurisdiction. </p> <p>In a suit in equity by the holder of voting trust certificates of a reorganized corporation against the trustees under a voting trust agreement, in which the bill alleged certain breaches of trust under a voting trust and under a reorganization trust, it was shown that the only duty imposed upon the defendants by the voting trust agreement was to vote on the shares of stock to the best interests of the depositors of certificates, that as such trustees they had done no acts except to vote on the shares at the annual meetings of the corporation at which boards of directors were elected, that only three of the defendants ever were directors and that they always had been a minority of the board, that whatever they had done in management of the company’s affairs had been done solely as directors acting with the other directors of the board, and that, as to the reorganization trust, the assets had been transferred to the new corporation about four years before the filing of the bill, that the purposes of that trust had been accomplished fully and it had expired by its terms about two and a half years before the filing of the bill, that the plaintiff had received certificates under the voting trust which represented shares in the new corporation and had accepted them in full satisfaction of all his claims and interests under the reorganization trust, and by an instrument under seal had released the defendants from all obligations growing out of that trust. Held, that the facts disclosed were a bar to the bill; that the plaintiff had an equitable interest in the corporation, and, if such interest had suffered from any mismanagement, he must seek relief in a bill framed for that purpose making the corporation and all the members of the board of directors defendants.</p>

<p> Trade Name. Equity Jurisdiction. </p> <p>Where one having a right to the use of the word “ Rex " as designating dyspepsia tablets has obtained in a suit in equity an injunction against the use by the defendant of the word “ Rexall ” to designate similar dyspepsia tablets, on filing a supplemental bill alleging that during the litigation the defendant has continued to sell dyspepsia tablets under the name “ Rexall ” he is entitled to an interlocutory decree ordering that the case be recommitted to the master and an account be taken of the defendant's profits on all goods so sold since the filing of the original bill. Under such a decree the defendant must account for all profits on such sales made since the filing of the original bill whether the “ Rexall ” tablets were sold as goods of the plaintiff or not and whether or not the profits were due to the use of the trade name and it is immaterial whether any actual deception or mistake occurred, as all such sales were wrongful. In such an accounting, if it appears that the defendant was carrying on a large business, and he has not shown that his general expenses were increased by the sale of “ Rexall" goods, he is not entitled to any deduction for the expenses of carrying on his general business such as rent and clerk hire, and has a right to deduct only such expenses as would not have been incurred except for the sale of the “ Rexall ” goods.</p> <p>Semble, that in this country, where an injunction has been granted restraining the defendant from using the trade name of the plaintiff, the court may give the plaintiff both damages and profits so far as is necessary to secure full compensation. In the present case no question as to damages arose, the order to the master being limited to an account of profits.</p> <p>Whether the force of R. L. c. 72, § 9, giving jurisdiction in equity to restrain the use or sale of counterfeits or imitations of a label recorded under § 7 of that chapter, has been affected by 21 ü. S. Sts. at Large, c. 138, quaere.</p>

<p>Attorney at Law. Sale, Rescission. Equity Jurisdiction. Evidence, Extrinsic affecting writings. Bills and Notes.</p> <p>An attorney at law who bargains with his client in a matter of advantage to himself, if the transaction is to be sustained in equity, must show that he fully and faithfully discharged his duty to his client not only by refraining from any misrepresentations or concealment of any material fact but by exercising active diligence to see that his client was fully informed of the nature and effect of the transaction and of the attorney’s interest in the matter involved.</p> <p>An attorney at law who bargains with his client in a matter of advantage to himself must see to it that his client either has independent advice or receives from him such advice as he would be expected to give him in a transaction between the client and a stranger. The attorney must see to it that his client is so placed as to be enabled to deal with him at arm’s length without being swayed by the relation of trust and confidence which exists between them.</p> <p>If two attorneys at law sell to a client, whom they know to be not clear headed and ignorant of property, §13,000 par value of bonds of a street railway company belonging to a construction company partly or wholly owned or controlled by them for the sum of about §12,000, which they have just received for their client in a settlement made in his behalf and which they know to be his whole property excepting a life interest in $35,000, without warning him against putting all of his property into one investment or warning him that the success of the investment depends on all the bonds of the railway company being sold and being sufficient to build and equip the road whereas only §10,000 of the bonds have been sold out of a proposed issue of §175,000, and without disclosing to him the facts known to them that the financial condition of the construction, company which owns all the stock and all the unsold bonds of the railway company is such that its money is kept on deposit in the treasurer’s name to protect it from attachment, that it owes the attorneys personally for advances made more than six months before, and that the bank balances in the name of the treasurer amount to only §84, the client may maintain a suit in equity against the attorneys to rescind and set aside the sale, and is entitled to a decree that on tendering a transfer and delivery of the bonds to the attorneys they shall ' repay him the money.</p> <p>If an attorney at law, who has received a large sum of money in settlement of negotiations which he has been conducting for a client, within one hour from the receipt of the money settles with that client and, after deducting the amount of his fees and charges, pays the principal part of the balance to his client not in money but in bonds which he sells to him, the relation of attorney and client still exists when the sale is made.</p> <p>As between the original parties to a promissory note it can be shown by oral evidence that the note although delivered was only to become binding in case the maker sold certain bonds placed in his hands as agent to be sold.</p> <p>In a suit in equity against two attorneys at law to rescind and set aside a sale of certain bonds made by them to the plaintiff when he was their client, the plaintiff may be found not to have lost his right to relief by a delay of a little over seven months before tendering the bonds to the defendants and demanding the purchase money or filing his bill, if during six of the seven months one of the defendants had possession of the bonds under an agreement of option, given at that defendant’s request, to buy the bonds at a price higher than that which the plaintiff paid for them, and the plaintiff filed his bill one month after the option expired and apparently as soon as he got actual possession of the bonds, there having been during the seven months no material change in the circumstances which the defendants ought not reasonably to have anticipated.</p>

<p>Negligence, Employer’s liability.</p> <p>If a workman with no knowledge of machinery is ordered by a superintendent of his employer to leave his ordinary work, which is not dangerous, and take the place of another workman during his dinner hour upon a machine the danger of which is not obvious, and is ordered by the superintendent to do the work in a certain manner exposing him to danger without warning him of it, and the workman in doing as he is told is injured by the machine, he can recover from his employer.</p> <p>A workman who is set at work by a superintendent of his employer upon a dangerous machine to take the place of another workman during his dinner hour without being warned of the danger, and who after the expiration of the dinner hour and after the return of the regular operator of the machine continues to work on it for three quarters of an hour longer, at the end of which time be is injured by the machine, is not barred from recovering from his employer on the ground that when injured he was acting outside the scope of his duties if he had reason to suppose that the superintendent knew what he was doing and kept on working because the superintendent did not tell him to stop.</p> <p>In an action by a workman in an abattoir against his employer for personal injuries, the following facts appeared: The plaintiff came from Ireland where he had worked on a farm but never had worked with machinery. A week after his arrival in this country he was employed by the defendant, to work in the basement, wheeling fat on trucks, loading and unloading teams and whitewashing. One day in the third week of his employment the defendant’s superintendent set him at work feeding fat into a chopping machine called a hasher from twelve to one o’clock while the regular operator of the machine was away from it. About a week afterwards the plaintiff again worked on this machine for something less than an hour while the same workman was away, and while thus at work the defendant’s superintendent came toward him on the floor beneath the platform on which the machine stood and made motions with his hands to indicate that the plaintiff should use both of his hands in pressing the fat into a tunnel that led from the flat table at which the plaintiff worked, and told him to do it that way and to put the fat through quicker, to “ press right tight into the machine with both hands,” and the plaintiff did so while the superintendent stood there watching him. About two weeks later while the plaintiff was loading fat into a truck the superintendent said to him “go to your dinner at eleven o’clock, and come back at twelve, and go on the hasher.” The plaintiff did so, and worked on the hasher until one o’clock when the workman who regularly operated the hasher returned. This workman instead of taking the plaintiff’s place at the hasher began to do the plaintiff’s regular work and the plaintiff continued to work on the hasher. He went on doing the work as the superintendent had instructed him for three quarters of an hour longer, and then as he was pressing the fat tight into the mouth of the tunnel with both hands it went off with a plunge from his hand and took his right hand into the machine with it, and his arm was cut off below the elbow by the revolving knives below the tunnel. Below the tunnel was a cylinder box about twenty-four inches long and eight or ten inches square which encased a revolving shaft set with knives put on spirally, there being other knives fixed on the inside of the cylinder, and the fat was cut between the two sets of knives as it was forced through the cylinder by the action of the spiral knives attached to the shaft which made six or seven hundred revolutions a minute. The opening into the tunnel was about eight or ten inches in diameter, and the knives were about eight inches below it. A mechanical engineer testified that when the machine was in operation a man could not tell anything about the internal parts of it, that the knives when revolving at this rate of speed could not be distinguished readily as separate knives, and that when looking down into the tunnel, if there was no fat to obstruct the view, all that any one could see was the part of the knives that went across the five or six inch circle at the bottom of the tunnel, and when the machine was in motion one could see only the whirl of revolving machinery. The plaintiff testified that he did not know how the machine was operated and did not understand it, that he never had seen it standing still, that the mouth of the machine was always covered with fat when he saw it and he never had seen what was in the opening, that he did not know that there was anything inside the machine that chewed up the fat although he knew that the fat came out softer after passing through it. He also testified that on the day of the injury he knew that it was the duty of the workman whose place he took to run the machine until twelve o’clock, that it was the plaintiff’s business to run it until one o’clock, when it was the other workman’s business to go on with it again, so that it was not part of the plaintiff’s work to run the machine at the time he was injured, and that he was supposed to leave it at one o’clock and go back into the basement. Held, that it could not be said as matter of law that the plaintiff assumed the risk of the injury he received; that there was evidence that the plaintiff was in the exercise of due care; and also evidence that the plaintiS’s injury was due to the negligence of the defendant’s superintendent in instructing the plaintiff to do his work in an improper and dangerous manner and failing to warn him of the risk thus incurred; also, that it could he found that the plaintiff at the time of his injury was not acting outside the scope of his duties and in disobedience to orders in continuing to run the machine after the return of the regular operator at one o’clock.</p>

Two APPEALS, from decrees of the Probate Court for the county of Middlesex. Julius Saposnick, alias Sapoznik, alias Sapognick, died intestate in Cambridge in the county of Middlesex, on July 9, 1902, leaving personal property to be administered upon in that county. He was a citizen and subject of the empire of Russia and left in the United States no widow, heirs at law or next of kin; but left in Vilna, Russia, a widow and three minor children.

<p>Trespass. Pleading, Civil. Practice, Civil, Amendment, Exceptions.</p> <p>The Six Carpenters' Case, 8 Coke, 146 a, is followed in this Commonwealth.</p> <p>The declaration in an action of tort alleged that the defendant forcibly entered the plaintiff’s close and did certain damage as alleged. At the trial it appeared that the defendant was employed by the plaintiff to build a barn and had gone upon the plaintiff’s land to finish it, that while thus lawfully on the plaintiff's land he passed over newly seeded portions of it and did unnecessary and unreasonable damage, that the defendant had obtained a judgment against the plaintiff establishing a lien on the land under R. L. c. 197, for his work upon the barn, and that the only work done by the defendant within thirty days of the time of filing his certificate of lien under § 6 of that statute was the work done on the day of the alleged trespass. A judge of the Superior Court, trying the case without a jury, found and ordered judgment for the plaintiff, and the defendant excepted. Held, that the defendant did not become a trespasser ab initio by his misconduct after his entry, which was made with the consent of the plaintiff, and accordingly that the plaintiff could not recover on his declaration in tort for breaking and entering the plaintiff’s close, but that the plaintiff might be allowed to amend his declaration, on such terms as the Superior Court should order, by alleging as his cause of action the injury done by the wrongful acts of the defendant after his lawful entry, and that if such an amendment was made the defendant’s exceptions should be overruled, but otherwise should be sustained.</p>

Tort for alleged criminal conversation with the plaintiff’s husband. Writ dated March 18, 1905. The declaration was as follows : “ 1st count.

<p>Municipal Corporations. Words, “Refuse.”</p> <p>The liability of a city or town undertaking work from which it seeks to derive revenue or other special advantage for negligence of its servants or agents engaged in the work, discussed with illustrations by Sheldon, J.</p> <p>The work of removing ashes from dwelling houses in accordance with the direction of an ordinance by teams of the sanitary division of the street department of a city, without charge, is of a public nature, and the city is not liable to a person injured through the negligence of the driver of such a team while engaged in this work.</p> <p>In R. L. c. 25, § 14, providing that a town may make a contract for the disposal of its garbage, refuse and offal, the word “ refuse ” includes ashes produced in dwelling houses.</p> <p>The work of removing ashes from dwelling houses in accordance with the direction of an ordinance by teams of the sanitary division of the street department of a city, without charge, is none the less of a public nature because a charge sufficient to cover expenses is made for the removal of steam engine ashes from factories and similar places by other teams of the same department.</p>

<p>Practice, Civil, New trial, View, Statements of counsel. Evidence, Admissions. Negligence. Street Railway.</p> <p>A verdict will not be set aside because in taking a view the attention of the jury was drawn to a matter not within the scope of the view as ordered by the judge, if this was not brought to the attention of the judge at the trial so as to give him an opportunity to prevent the jury from drawing inferences from the matters not proper for their consideration.</p> <p>Statements made by counsel in opening to the jury although not evidence for the party making them may have the force of admissions.</p> <p>In an action against a street railway company for injuries caused by the upsetting of the plaintiff’s sleigh while he was driving over a ridge of snow between double tracks of the defendant, the jury on motion of the defendant took a view of a snow plow, and the defendant’s counsel before the view told them in court that the plow they were about to see was the same which the defendant had used at the place of the accident or exactly like it, and at the view invited their attention to the shears underneath the plow and to the wings on its sides. The defendant’s counsel stated in his opening that he should offer evidence to show that by the operation of the plow it would be impossible for the snow to be heaped up between the tracks. Instead of doing this, the defendant rested its case on the plaintiff’s evidence, and the jury returned a verdict for the plaintiff. The counsel for both parties referred to the view in their arguments to the jury. Afterwards the defendant objected to the insertion by order of the judge of the foregoing matters in its bill of exceptions. Held, that the statements of the defendant’s counsel and a narrative of what he pointed out to the jury at the view were inserted properly in the bill of exceptions as an essential part of the evidence, being an admission that the defendant had used at the place of the accident the snow plow which its counsel showed to the jury.</p> <p>In an action against a street railway company for injuries caused by the upsetting of the plaintiff’s sleigh while he was driving over a ridge of snow between double tracks of the defendant, it appeared that the street where the accident happened was the natural way for the plaintiff to take, that the snow was piled high between the outer rails of each of the defendant’s tracks and each sidewalk, so that practically it was necessary to drive over the railway tracks, that there was a ridge of hard snow between the two tracks about ten or twelve inches high in the middle and sloping down to two or three inches in height next to the tracks, that the plaintiff was driving on the right hand track and crossed to the left hand track to let a car which came up from behind pass him, that then he turned to the right again and in crossing the runners slipped on the ridge between the tracks, overturning the sleigh and causing the injuries. Held, that there was evidence that the plaintiff was in the exercise of due care.</p> <p>Where an action for personal injuries against a street railway company for an injury caused by a ridge of snow between double tracks of the defendant is tried with another action by the same plaintiff against the town in which the accident occurred for the same injury on the ground of a defect in the highway, and evidence of a certain conversation is admitted simply for the purpose of showing notice in the action against the town, but the railway company does not call the attention of the presiding judge to the matter and ask him to instruct the jury not to consider the evidence against that defendant, if in the action against the railway company the jury return a verdict for the plaintiff a new trial will not be granted because of the admission of the evidence.</p> <p>In an action against a street railway company for injuries caused by the upsetting of the plaintiff’s sleigh while he was driving over a ridge of snow between the double tracks of the defendant in a street of a town in 1895 while Pub. Sts. c. 113, § 32, still was in force requiring every street railway company to keep in repair the paving, upper planking or other surface material of the portions of streets used for its tracks and before the passage of St. 1896, c. 640, taking away the liability of cities and towns for injuries caused by snow or ice, it appeared that the action was brought more than two years after the accident and that no notice of the time, place and cause of the injury was given to the defendant in accordance with St. 1894, c. 422. There was evidence that the cause of the accident was the defendant’s negligence in so operating its snow plow as to pile up an artificial ridge of snow between the tracks. Held, that the jury might find that the accident was due to the carelessness or misconduct of the agents and servants of the defendant in the management and use of its tracks, for which at that time the defendant was liable without the notice afterwards required by St. 1898, c. 678, § 11, now R. L. c. 112, § 44.</p>

The following statement of the case is taken from the opinion of the court: This is an action on a policy of insurance dated October 9, 1899, whereby, so far as is material here, the defendant agreed in consideration of a weekly payment of fifteen cents to pay to the administratrix of the insured $201, unless settlement should be made under article second, on proof of death of the insured during the continuance of this policy, which is issued subject to the conditions on the…

<p>Equity Pleading and Practice, Appeal. Frauds, Statute of, Part performance of oral contract. Equity Jurisdiction, Specific performance.</p> <p>In a suit in equity to enforce the specific performance of an oral promise to give the plaintiff a lease in writing of certain real estate, where the defendant demurs to the bill on the ground that the alleged contract is within the statute of frauds and an interlocutory decree is made overruling the demurrer, if the defendant does not appeal from this decree and does not set up the statute of frauds in his answer or rely on it at the trial on the merits, he still under R. L. c. 159, § 26, can rely on the defence of the statute on an appeal from a final decree for the plaintiff, if it appears that on the evidence at the trial the statute is a bar to the suit on the ground alleged in the demurrer.</p> <p>A bill in equity to enforce the specific performance of an oral promise to give the plaintiff a lease in writing of certain real estate alleged that the plaintiff was a tailor who had been carrying on a large and lucrative business and that with the expectation of receiving the lease promised by the defendant he gave up valuable rights in his old place of business, took possession of the premises to be leased, made extensive repairs upon them at great expense and moved his business there. Held, on demurrer, that the bill alleged a part performance by the plaintiff which took the case out of the statute of frauds.</p> <p>Equity will decree the specific performance of an oral contract to give a lease in writing of certain real estate where the plaintiff can show a sufficient part performance in reliance upon the contract to take the case out of the statute of frauds.</p>

Tort by the heirs at law of Peter Feeley against the superintendent of a private cemetery, called the Mount Auburn Catholic Cemetery, owned and managed by the Roman Catholic Archbishop of Boston, a corporation sole, with a first count in the nature of trespass quare clausum fregit alleging that the plaintiffs were the owners and proprietors of a certain burial lot in the cemetery, and that the defendant entered the close, dug up the earth, opened the grave, and struck,…

<p>Devise and Legacy. Trust, Termination. Perpetuities. Equity Jurisdiction, Bill for instructions.</p> <p>A testatrix left a fund in trust to pay the income to her daughter for life “ and upon the decease of my said daughter, to pay over the said interest and income to her child or children, and the issue of any deceased child, in such proportions as she shall direct and appoint by her last will, and in default of any will or direction on her part, to her child or children, and to the issue of any deceased child, share and share alike; the issue of a deceased child taking the parent’s share. It is my will that the principal sum shall remain in trust, for the benefit of my daughter, and of her children and their issue, as above mentioned, as long as the law will permit; and that at the termination of the trust under the limitation provided by law, the said principal sum shall be paid over to the surviving child or children of my said daughter, and to the issue of any deceased child, share and share alike, the issue of a deceased child taking its parent’s share.” At the death of the testatrix her daughter was living and had two sons and a daughter in ventre matriz who was born three months later. The daughter of the testatrix died intestate in less than a year after the death of her mother. The trustees paid the income to the three children of the daughter in equal parts, for twénty-one years, after which these three, the grandchildren of the testatrix, demanded' the termination of the trust and a distribution of the fund, and the trustees brought a bill for instructions. Held, that, after the death of the daughter of the testatrix without having exercised her power of testamentary appointment, the trustees rightly had distributed the income in equal parts among her three children, who at the death of the testatrix took a vested interest for life, contingent on respectively surviving their mother and subject to her right of testamentary appointment; that, no one of these three beneficiaries having died, the trust could not be terminated; and, whether upon the death of one or all of them a partial or full distribution of the fund must take place or what that distribution should be, would not be considered by the court before the event, it being clear that the provision requiring the payment of the income to the children of the daughter of the testatrix was valid independently of the provisions in regard to the later continuance of the trust.</p> <p>On a bill for instructions by a trustee the court will give him directions only in regard to his present duties.</p>

<p>Accord and Satisfaction. Trust, Termination.</p> <p>An agreement in writing, executed by the beneficiaries of a trust created by will and the trustees, providing for the final distribution of the property held in trust, followed by a final account of the trustees showing a full distribution of the property in accordance with the agreement and leaving nothing in the hands of the trustees, the account being assented to by the beneficiaries and filed and allowed by the Probate Court, together constitute a full and final settlement not only of the matters appearing upon the face of the accounts but of all matters relating to the trust which the beneficiaries by the exercise of reasonable diligence could have known.</p>

Tort by a grocer for the killing of his horse and the destruction of his delivery wagon by an electric car of the defendant through the alleged negligence of the defendant’s servants on the morning of September 8, 1902, on the northerly side of Salem Street, a highway running from Haverhill to the village of South Groveland, while the plaintiff was taking orders and delivering groceries to customers on Salem Street. Writ dated October 11, 1902.

<p>Witness, Contradiction. Evidence, Admissions by conduct, Offer of compromise. Practice, Civil, Exceptions, Conduct of trial.</p> <p>Whether a party to an action, after having cross-examined the adverse party on immaterial matters without objection, shall be allowed to introduce evidence to contradict him on those matters is within the discretion of the presiding judge.</p> <p>In an action in which the plaintiff had testified, the defendant asked for the instruction “If the jury are satisfied that the plaintiff either in this or in any previous trial has deliberately misstated anything, the jury may consider that such conduct is an admission that his claim' is a wrongful one.” It did not appear that there was any deliberate misstatement of fact at a previous trial, although the plaintiff’s testimony given at a previous trial on cross-examination on immaterial matters differed from his testimony at the present trial. The judge refused to give the instruction. Held, that the instruction requested was refused rightly, not being limited to misstatements which either were material or were believed by the plaintiff to be material.</p> <p>In an action on an alleged promise of the defendant, the presiding judge is not called upon to rule at the request of the defendant that particular expressions used by the defendant in a conversation or conversations relied on by the plaintiff did not in themselves as matter of law constitute a promise.</p> <p>In a trial the counsel for the plaintiff on cross-examination of the defendant in presence of the jury put the question “You have offered to pay the plaintiff a certain amount if he would settle this case 1 ” On objection of the defendant the question was excluded by the judge, and the defendant moved to take the case from the jury. This the judge refused to do and said “The jury must disregard that matter.” He also instructed the jury that it was entirely incompetent for one party or the other to show that either had attempted to settle the case. Held, that the judge was not required to say more than he did, and that the defendant had no ground for exception.</p>

<p>Attorney at Law. Evidence. Practice, Civil, Auditor’s report. Words, “Retainer.”</p> <p>A payment made to an attorney at law by a client on account of services cannot be treated by the attorney as a retaining fee.</p> <p>In an action by an attorney at law for compensation for services, upon the question whether certain sums of money sent by the defendant to the plaintiff were paid as retaining fees or on account of services, the fact that the plaintiff received and credited the payments as retaining fees if unknown to the defendant is not evidence against the defendant.</p> <p>In an action by an attorney at law for compensation for services, upon the question whether certain sums of money sent by the defendant to the plaintiff were paid as retaining fees or on account of services, if an auditor finds that the plaintiff in a letter asked the defendant for $260 “ on account," which the defendant paid, a further finding by him that the plaintiff “ intended to ask for a retainer and he has so credited it in his accounts ” is not evidence that the payment was made by the defendant as a retaining fee.</p> <p>The rule as to retainers, as distinguished from specified services of attorneys at law, is that upon making an engagement for services the attorney is to be paid a reasonable compensation for being so bound, and in determining what sum is reasonable the interests of the attorney and those of the client should be considered.</p> <p>Discussion by Knowlton, C. J., of the obligations imposed upon an attorney at law and his client by the payment of a retaining fee.</p> <p>In an action by an attorney at law for compensation for services, in which the question in dispute is whether certain sums of money sent by the defendant to the plaintiff were paid as retaining fees or on account of services, if it appears that the plaintiS was retained in each case in which he was employed by the defendant but it does not appear that the amounts charged as retaining fees were agreed to by the defendant, the burden is on the plaintiff to prove affirmatively the reasonableness of his charges, and, if the payments were made by the defendant with an understanding warranted by the communications between the parties that they were to be applied on the account for services, they must.be so applied.</p>

<p>Negligence, Employer’s liability. Evidence, Circumstantial.</p> <p>If a brass finisher in a machine shop in which a rapidly revolving emery wheel is used without a guard is injured from being struck by a piece of such a wheel which explodes while he is working ten feet away from it, he cannot hold his employer liable for his injuries on the ground that the wheel was without a guard, although in some factories a guard is used and its use would prevent the pieces of an exploding wheel from flying off and causing such an accident.</p> <p>"In an action by a brass finisher in a machine shop against his employer for personal injuries from being struck by a piece of a rapidly revolving emery wheel which exploded while he was working ten feet away from it, there was evidence that the wheel was a new one not manufactured by the defendant, and that it could not have exploded if there had not been some defect in it. There was nothing to show that the wheel was being operated in any respect improperly or at an excessive rate of speed, and nothing to show what the defect was or whether it was of such a character that a careful inspection would have disclosed it. Held, that there was no affirmative evidence of negligence on the part of the defendant, the plaintiff having failed to exclude the operation of causes other than the defendant’s negligence, such as a hidden flaw, which might have produced the accident.</p>

<p> Nuisance. License. Bowling Alley. Damnum absque Injuria. </p> <p>A person carrying on a business may be licensed under statutory authority to make a noise which but for the license would be a nuisance.</p> <p>A person maintaining bowling alleys for hire in conformity with a license granted to him under R. L. c. 102, § 168, cannot be restrained from operating his alleys between ten o'clock p. m. and six o’clock a. m. on the second floor of a wooden building with unplastered walls if these things are permitted by his license.</p> <p>A person who suffers loss from the operation of a howling alley in conformity with a license granted under R. L. c. 102, § 168, has no remedy against the licensee.</p>

<p>Unfair Competition. Trade Name. Equity Jurisdiction, To restrain unfair competition.</p> <p>In a suit in equity by one wholesale baker against another to enjoin the defendant from selling any bread as “ Creamalt ” bread, from selling any malt bread in a loaf of oval shape in imitation of the plaintiff’s Ipaf, and from using the name “Crown Malt,” it was found by a master that the plaintiff had originated a kind of bread in which milk and malt were combined, and to identify it before the public made it in oval loaves of distinctive size, shape and surface and had coined and adopted the word " Creamalt ” as a trade name, also registering it in the office of the secretary of the Commonwealth as a trademark, that each loaf bore the plaintiff’s trademark printed in blue ink upon a white label, that the bread became popular and the “Creamalt” branch of the plaintiff’s business was its most valuable part and of great value, that the defendant, with a fraudulent intent to appropriate the benefit of the public demand for the plaintiff’s bread, adopted the name “ Crown Malt” and affixed to each loaf a white label on which the words “ Crown Malt ” were printed in blue ink, and adopted also an oval loaf in imitation of the plaintiff’s loaf, imitating also the peculiarity of surface of the plaintiff’s loaf produced by a steam glaze. The master found as a fact that the words “ Crown Malt ” bore such a close resemblance to the plaintiff’s trade name and trademark “ Creamalt” as to be likely to promote frauds by dealers and mislead the public, and that the “ Crown Malt ” loaves of the defendant had been “ palmed off ” as the “ Creamalt ” bread of the plaintiff: He also found that the defendant’s legitimate business could be conducted properly without giving his loaves this distinctive misleading appearance. Held, that the plaintiff was entitled to an injunction, the terms of which would be fixed by a single justice, and to an assessment of damages.</p> <p>In a suit in equity by one wholesale dealer against another to restrain unfair competition in trade consisting of an imitation of the plaintiff’s trade name and of the appearance of his goods, it is no defence that the defendant does not mislead or intend to mislead the retail dealers to whom he sells, if he knowingly places in the hands of the retail dealers an instrument of fraud with which they may deceive the public.</p>

<p>Assignment, For benefit of creditors. Good Will. Trade Name. Corporation. Sale. Equity Pleading and Practice, Bill.</p> <p>An assignment for the benefit of creditors, made by a publishing corporation having a valuable good will, transferring to a trustee all “the real and personal property and estate and claims of every kind” belonging to the assignor “ excepting therefrom such property as is exempt by law from attachment or from being taken on execution,” conveys the good will of the assignor’s publishing business including the right to use its trade name for the benefit of creditors; and all the more so if the assignment contains a provision authorizing the trustee to carry on in whole or in part the business theretofore conducted by the assignor “ the more effectually and to the better advantage to dispose of the stock in trade and other assets ” of the assignor; and the trustee can give to a purchaser of the property used in the business and of the good will connected with it a right to use the assignor’s name as a designation of the publications that previously have borne its imprint, and to advertise as the assignor’s successor in the business so purchased.</p> <p>An exception from a general assignment for the benefit of creditors of “ such property as is exempt by law from attachment or from being taken on execution” refers only to property which expressly is exempted by statute, and does not except the good will of the assignor’s business or the right to use a trade name.</p> <p>Semble, that by the provisions of Rev. Sts. of Maine, 1903, c. 47, § 56, a corporation organized under that statute does not transfer its corporate franchise by a general assignment for the benefit of creditors, and it may be that such is the common law.</p> <p>An unrestricted sale by the assignee of a publishing corporation under a general assignment for the benefit of creditors of “ plates, publishing rights, books in process and books manufactured ” includes the right to use the name of the corporation not only in selling or manufacturing books in which the name appears on the title page but also in using and making available the books in process of manufacture and the plates for printing others.</p> <p>On demurrer to a bill in equity general allegations in the bill that the defendant acted wrongfully in doing certain things do not help the plaintiff if the other averments of the bill show that the alleged acts were lawful.</p>

<p>Contract. Corporation. Equity Pleading and Practice, Parties.</p> <p>A corporation cannot by adoption or ratification become a party to a contract made by individuals before its incorporation for its benefit when incorporated, although it can make a new contract on the same terms.</p> <p>In a suit in equity by certain individuals and a publishing corporation against a writer of books and another publishing corporation, to enjoin the defendant publishing company from publishing the books written by the individual defendant, and the individual defendant from permitting such publication contrary to an agreement in writing between the individual plaintiffs and the individual , defendant, the agreement sought to be enforced provided that the individual defendant should allow the plaintiff corporation, then about to be organized by the individual plaintiffs, the exclusive right to publish in book form all the writings of the individual defendant already published or which she should produce within a period of years still unexpired, if the individual plaintiffs should elect to publish them, otherwise, that the individual defendant should have the right to place them where site chose, and that the plaintiff corporation, then about to be formed, should pay to the individual defendant a certain royalty on the retail price of each book of the writings of the individual defendant which should be published and sold by the plaintiff corporation. The bill alleged that books were published under and in accordance with this agreement, that subsequently the plaintiff corporation made an assignment for the benefit of creditors and that its property and business were purchased from the assignee by the defendant corporation, which at the time of the filing of the bill was publishing the books written by the individual defendant, although the plaintiff corporation was ready and willing to resume the publication of the books. Held, on demurrer assigning such cause, that the plaintiff corporation not being a party to the contract was joined improperly as a plaintiff, and that the bill should be dismissed.</p>

<p>Assignment, For the benefit of creditors. Corporation.</p> <p>A general assignment made by a publishing corporation to trustees for the benefit of creditors, including all property and assets of the corporation not expressly exempted from attachment, and giving the trustees authority, if they deem it expedient to do so, to carry on in whole or in part the business conducted by tile assignor, and also, after mentioning different kinds of property and claims, expressly including “all evidence thereof,” passes to the trustees the title to and the right to the possession of the books of account of the corporation and the books of record of the meetings of its stockholders and its directors down to the time of the assignment. On the question whether upon the execution of the trust in other particulars without the payment of the debts of the corporation in full the right to the books would revert to the corporation, the court refrained from intimating an opinion.</p> <p>The phrase, “ always excepting therefrom such property as is exempt by law from attachment or from being taken on execution,” occurring in a general assignment by a publishing corporation to trustees for the benefit of its creditors, describes only that kind of property which is the subject of express exemption by statute, and does not except from the assignment the books of account and books of record of the corporation.</p>

<p>Tort against the city of Everett for personal injuries caused by an alleged defect in Waverley Street, a public highway of that city. Writ dated September 18, 1903.</p> <p>At the trial in the Superior Court before Hitchcock, J. it appeared that Waverley Street was a public highway in Everett and that due notice of the time, place and cause of the injury was given to the defendant. There was evidence that under authority of a permit obtained from the city a day or two before the accident one Henderson, a licensed drain layer, had opened a trench on the morning of the day of the accident for the purpose of making sewer connections with a house on Waverley Street, that the trench extended from the middle of the street across the sidewalk, and was about two feet wide and about three feet deep; that Waverley Street was forty feet wide and the sidewalk at the place in question was seven and one half feet wide, the street being twenty-five feet wide from curb to curb.</p> <p>The plaintiff testified, in direct examination, that she lived at 58 Morris Street in Everett, and that on September 1, 1903, she went to Forest Avenue in that city on business; that upon returning to her home after dark she came along a street called Buckman Street and walked along that street until she came to Waverley Street; that she proceeded along Waverley Street on the left hand side toward Warren Street; that she saw dirt on the sidewalk; that she came to the dirt and stopped and looked, and as she “ looked down the dirt and passed the dirt, it looked like a sidewalk six or seven feet ” ; and when she looked aci’oss the street there was a heavy lot of dirt in the street, from which she supposed that work was doing there and that they had shovelled the dirt out on the street and upon the sidewalk to get rid of it; that she stepped toward the fence, that it looked hard, and she put her foot there and it appeared hard, that “ the other sidewalk looked all good,” and the first thing she knew she was down in the trench; that it looked just like a clear sidewalk, so she “ stepped by the dirt to come on there, and was all right,” and as she went along the first thing she knew she “ was down in the trench about three feet ” ; that on the sidewalk where she stood there were no lights, but across the opening there was one light; that it was on a piece of piping; that the piping stood on end on the dirt, which carried it up, and the lantern was up high on the piping; that the pile of dirt upon which was the light was about two feet high, that the piping was about three feet high and the lantern was on top of that; that there was a tree right at the end of the opening on the opposite side from where she stood; that the trunk of the tree was near the curbstone; that it was a thick leafed, heavy tree; that it shaded the opening very much and the limbs spread across the sidewalk; that the lantern on the drain pipe was near the tree on the opposite side of the trench and that it stood on the dirt about a foot from the tree and the piping was under the branches of the tree; that there were other lights about there, though not on the sidewalk, and no barriers on the other side of the trench ; that the dirt ran out into the street and there was quite a body of dirt in the street and that there were two lanterns in the centre of the street, but she could not say just how they were placed; that the place of the accident was about four or five minutes’ walk from the city hall; that the city hall is in the centre of the town, in the business part of the town.</p> <p>On cross-examination she testified that she had been on Waverley Street a great many times and that she had a cousin living on .each side of the street a little beyond where the opening was; that when she first came into Waverley Street or Buckman Street she saw lights in the street; and as she looked she did not know the street, and it looked like a very dark street and shaded with trees, and she thought it was a signal put up for teams not to go down there; that she stepped right straight into the trench and did not stumble, that she tried the dirt with her foot and it seemed hard; it looked as though people had walked that way, that is, in a path which she thought was between the dirt and the fence, that was at the end of the opening, and then the opening ran through to the curbstone; that the opening looked like a sidewalk to her; that it was not a brick sidewalk but an ordinary dirt sidewalk, and, as it was shaded, it looked alike, that as she looked down it looked to be a good sidewalk six or seven feet past, beyond.</p> <p>At the conclusion of the evidence the defendant asked the judge to rule, that upon all the evidence the action could not be maintained, and that a verdict should be directed for the defendant; also that there was no evidence that the plaintiff was in the exercise of due care and therefore that she could not recover.</p> <p>The judge refused to make these rulings and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $900; and the defendant alleged exceptions.</p>

<p> Municipal Corporations. Constitutional Law. Veto. </p> <p>Under R. L. c. 26, § 9, an attempt of the mayor of a city to veto an order of the city council without stating his objections in writing in returning it is of no effect.</p> <p>R. L. c. 26, § 9, giving a limited veto power to the mayor of a city contains the same requirement which the Constitution of the United States and that of this Commonwealth impose respectively on the President and the Governor, that he must return an order of which he disapproves “ with his objections in writing.”</p>

<p>Contract by the surviving executor under the will of Phineas J. Stone, who died on August 12, 1891. Writ dated June 11, 1895.</p> <p>The declaration originally contained three counts, but the third count was stricken from the declaration by agreement. The first count sought to recover $5,000 and interest on an unwitnessed note dated November 17, 1879, payable three months after date. ,The defendant pleaded the statute of limitations, and on this count Hardy, J. in the Superior Court found for the defendant.</p> <p>The second count sought to recover $20,000 and interest on an alleged note of the defendant Stone dated January 15,1880, payable to P. J. Stone, or order, on demand, with interest payable semi-annually, no rate of interest being named, and purporting to have been witnessed by Francis Lewis. In the Superior Court the case was tried before Hardy, J., without a jury, upon an auditor’s report and oral testimony. The defendant denied that the plaintiff was the rightful possessor of the note at the time the action was brought so as to be entitled to any presumption or benefit from its production or possession.</p> <p>The chief controversies were as to evidence of payment or satisfaction of the note. The auditor had excluded much evidence offered by the defendant and made various rulings, and the judge confirmed and followed the rulings of the auditor as to the exclusion of evidence offered by the defendant and the auditor’s ruling that there was no evidence of payment or satisfaction.</p> <p>The defendant contended that, if the plaintiff was the proper possessor of the $20,000 note in question, it originally was given as part of a colorable or straw transaction to protect Amos Stone, the defendant, from threatened proceedings against him by his wife; and that Pirineas J. Stone, the payee of the note, sympathized with and desired to help Amos, who was his brother; or that, if valid at its inception, after its proper payment or satisfaction, the note was kept by the payee either through an accidental omission to return it to Amos when paid or satisfied, or as a colorable claim to protect Amos from such anticipated proceedings by his wife; and the counsel for the defendant offered to show declarations of Amos to this effect. At the time of the trial Amos Stone, the defendant, was dead and the administrator of his estate had been admitted to defend the action.</p> <p>Evidence was offered by the defendant that the relations of Amos and his wife were unfriendly before the date of the note. The judge said that this evidence unless connected with the transaction of the note was immaterial and ruled as follows: “ I will exclude the evidence so far as it has been offered at the present time. I will wait till the rest of the evidence comes.” The defendant excepted to this ruling. The character of other evidence offered by the defendant and excluded by the judge which is material to the exceptions appears from statements in the opinion.</p> <p>The defendant asked for nine rulings, the one numbered seven apparently having been withdrawn.</p> <p>The judge made the following rulings as requested:</p> <p>“3. That if a note or notes were given in renewal of the $20,000 note in question and this renewal note was not produced or accounted for, the plaintiff cannot recover on this note.</p> <p>“ 4. That if the notes were found in a receptacle used jointly or in common by Phineas and Amos Stone, or by them with others, the plaintiff is entitled to no rights or presumption from offering the note until he has proven his rightful and proper possession and ownership thereof.</p> <p>“ 5. Lapse of time although less than the statutory period of limitations taken in connection with the circumstances of the case is evidence of payment.”</p> <p>“ 10. If the witness to a witnessed note is not proved to have affixed his signature as witness at the request of the maker of the note nothing else appearing, the note cannot be recovered upon after the statutory period of six years applicable to unwitnessed notes.”</p> <p>The judge refused to make the following rulings:</p> <p>“ 1. That on all the evidence the plaintiff is not entitled to recover.</p> <p>“ 2. That on the whole case there is evidence of payment or satisfaction of the $20,000 note in question.”</p> <p>“ 6. The presumption of payment will arise from a production of evidence of the payment of a later debt, or from the passing of some money or obligations between debtor and creditor after the debt is due.”</p> <p>“ 8. That the stating and settling of accounts between Phineas and Amos Stone at frequent intervals after the making of the note in question, raises a presumption that all matters had been adjusted between them.</p> <p>“ 9. That if the $20,000 note in question was found with old diaries and disused papers, and other articles in a drawer, which a number of persons used, and to which others had access, this, raises a presumption that the notes had been paid or satisfied, or had ceased to have, if ever they had, any value.”</p> <p>On the second count, to which the. above rulings and the exceptions relate, the judge found for the plaintiff in the sum of $50,476.67; and the defendant alleged exceptions.</p>

<p>Petition, filed August 7 and amended September 19, 1905, against the mayor of Boston, alleging that the petitioner was a veteran of the Civil War within the meaning of R. L. c. 19, § 20; that for a long time before and up to April 15,1904, he was employed as a janitor of police station No. 5 in the city of Boston; and that he was discharged from his position as janitor by the captain of that station on April 15,1904, without his consent and without any charges against him having been filed with the mayor of the city, or any hearing before the mayor as required by R. L. c. 19, § 23 ; praying that a writ of mandamus might issue directed to the mayor of Boston ordering him to reinstate the petitioner as janitor of police station No. 5.</p> <p>The case came on to be heard before Braley, J., who reserved • it upon the petition as amended, the answer and agreed facts for determination by this court, such order to be entered as justice might require.</p>

<p> Board of Health. Water Supply. Great Pond. Municipal Corporations. </p> <p>Whether under R. L. c. 75, § 113, authorizing the State board of health to "make rules and regulations to prevent the pollution and to secure the sanitary protection, of all such waters as are used as sources of water supply,” that board have power to make a regulation forbidding the cutting of ice on a great pond so used, without a permit in writing from that board, quaere.</p> <p>Under St. 1897; c. 510, § 1, now E. L. c. 75, § 113, authorizing the State board of ' health to “ make rules, regulations and orders for the purpose of preventing the pollution, and securing the sanitary protection ” of such waters as are used as sources of water supply, that board have no power to make a regulation forbidding the cutting of ice, in a great pond so used, without a permit in writing from the board of water commissioners of the city in which the pond is situated, thus attempting to delegate to another board the right to grant or withhold such a permit.</p>

<p>Tort by a lamp trimmer against an electric light company by which he was employed, for injuries caused by his falling from a pole of the defendant at the corner of Maple Street and Pine Street in Hyde Park, owing to a step, consisting of a spike driven into the pole, coming out when grasped by the plaintiff in climbing the pole. Writ dated December 20,1900.</p> <p>In the Superior Court the case was tried before BeCourcy, J. A teamster who saw the accident described it as follows:</p> <p>“ The plaintiff was twelve or fifteen feet up the pole when he fell; before he fell he was going up the pole; he stepped out of the wagon on to the lower step of the pole and reached around with his right band to pull himself up on to the next step, and then his left hand up on the next step was what pulled out. He stepped out of the wagon and put his left foot on the lower step then reached around with his right hand on the other side of the pole, and that pulled him on to that, and his other foot goes on a step on the other side, then he reaches with this to pull up and that is when he fell, it was the third step, I think, the third step from where he started, the second step on the left hand side of the pole.”</p> <p>The plaintiff himself described the accident as follows:</p> <p>“ On the day of the accident I started to go up one of the defendant’s poles located at the junction of Maple and Pine Streets, between eleven and twelve o’clock in the morning; I was going up from one step to the other, one hand and one foot on each side of the pole. The steps were about three feet apart. I do not know how far up the pole I went. I remember stepping on the lower step about eight feet from the ground, and putting my other foot on the next step. My hands were going up the steps from step to step, one at a time, the same as my feet. After that I have no recollection of anything until the next day.”</p> <p>The evidence relating to the due care of the plaintiff is stated in the opinion.</p> <p>At the close of the evidence the judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.</p>

<p>Negligence, Employer’s liability. Railroad.</p> <p>One who enters the employment of a railroad company as a freight brakeman assumes the risk of injury from coming in contact with permanent structures near the track, even if they are unusually near it. Scanlon v. Boston Albany Railroad, 147 Mass. 484, overruled.</p> <p>If one entering the employment of a railroad company as a freight brakeman signs an application in writing stating “If this application is granted, and I am employed as a freight brakeman, I shall enter upon such employment with a full understanding of the risks attending the same, all of which I will deliberately assume, and I will, as soon as possible, make a careful examination of the railroad tracks and yards where my duty calls me, and note their condition and position, and the position of all . . . objects that are near the track,” whether the effect of this agreement is to postpone the assumption of the risk of injury from coining in contact with a building unusually near the track until the brakeman has had a reasonable opportunity for inspection, quaere.</p>

<p>Contract, Construction. Railroad. Evidence.</p> <p>Under a contract between a railroad company and a coal dealer, by which the company agrees to construct a spur track on its land at a certain point to accommodate the coal business of the dealer, and the dealer agrees that whenever the company “ may find it necessary for the accommodation of its business to remove said spur track, no claim for damage or loss by reason of its removal shall be made,” the railroad company is the sole judge of the necessity of removing the track for the accommodation of its business, and if it removes the track in good faith it cannot be held liable on the ground that its action is unreasonable.</p> <p>In an action by a coal dealer against a railroad company for an alleged breach of contract by the removal of a spur track built by the defendant on its own land to accommodate the business of the plaintiff under an agreement that whenever tlie defendant “ may find it necessary for the accommodation of its business to remove said spur track, no claim for damage or loss by reason of its removal shall be made,” evidence offered by the plaintiff that “it was not necessary for the accommodation of the defendant’s business to remove the spur track in question at the time when it was removed ” should be excluded as immaterial in the absence of evidence that the defendant was not acting in good faith.</p>

<p>Negligence. Street Railway. Evidence, Circumstantial.</p> <p>In an action against a street railway company by one who while a passenger in an open car of the defendant received injuries from the back of the seat in front of her falling upon her knee in consequence of the breaking of one of the metallic arms supporting it, the testimony of persons who examined the break after the accident, that half of the break was bright, and the other half was rusty, black, dull and corroded, warrants a finding that the metallic arm was cracked before the accident and that the crack would have been seen upon inspection, and is evidence of the defendant's negligence.</p>

<p>Tort for personal injuries, with a first count at common law alleging that the plaintiff was injured by reason of the negligence of the defendant in putting him at work in a dangerous place and upon a defective machine, to wit, a defective derrick, and by reason of the defendant’s negligence in hiring incompetent servants, and a second count under the employers’ liability act for injuries caused by a defect in the condition of the wa3Ts, works or machinery of the defendant. Writ dated July 23, 1900.</p> <p>In the Superior Court the case was tried before Bishop, J.</p> <p>The plaintiff introduced evidence tending to show that on the morning of the accident, May 1, 1900, he, with two other men, one Trickett and an Italian, were told by one Chandler, the foreman, to go around into the stock yard and work; that when they came out to the stock yard one Devoe, who had charge of the stock yard, asked them what they were out there for, and they said they were sent there, and he then told them to move some iron plates which were lying near, where filling was to be done. As Devoe said this, he directed their attention to the plates and the derrick. Immediately after telling the men this, Devoe turned away and went to speak with Chandler, some seventy-five feet away, who called him to tell him about some other work. Some of the iron plates were an inch and a quarter thick by eight or ten inches wide and from fifteen to thirty feet long, and would weigh one hundred or two hundred pounds apiece. The men then went to work to move the plates with the derrick, Trickett and the Italian turning the cranks to wind up the hoisting gear, one on each side of the mast, and Butler, the plaintiff, pulling at the tag rope to get the boom around so that the fall would be over the plates. There was an iron spreader to be fastened on the end of the boom, on which the plates were to be moved. Trickett left the crank, to go and get the plates and spreader adjusted, leaving the Italian alone at his crank, and the boom fell upon the plaintiff. The plaintiff introduced evidence tending to show that it fell because there was no pawl or catch to hold it after being wound up and to prevent unwinding, and contended that if there had been a pawl or catch, it would have fallen into place upon the cogs and prevented the accident. The plaintiff was found lying on the plates.</p> <p>It appeared in evidence that a wooden stick was used with this derrick to prevent the drum, for raising and lowering the boom, from unwinding. The stick was about four feet long and about two by four inches thick, and was of oak or some kind of hard wood. The usual way of putting the stick in to hold the boom was by putting it in between the spokes of the boom wheel, and then the wheel would turn around and the stick would come against the frame of the derrick and would be in a diagonal position, so that one end would be higher than the other. It was in evidence that before the accident the stick was in between two of the spokes of this wheel. There was evidence that the use of this stick was an insufficient and unsafe device.</p> <p>The defendant introduced evidence tending to contradict the evidence of the plaintiff, and also set up in defence a release from the plaintiff, and there was evidence concerning the giving of this instrument and upon the question whether the plaintiff was of sound mind and understanding when it was executed, and whether it was executed under such circumstances as to be a valid and binding release. It appeared that on May 14, 1900, about two weeks after the accident, while the plaintiff was at the hospital he signed a receipt for $500 from the defendant in full settlement and satisfaction for his injuries. The plaintiff testified among other things that when this instrument was executed he had headaches all the time as the result of the injury, and had delusions, thinking that he was buried in a graveyard and was trying to dig the dirt off of him to get out, and thought somebody was pulling him down deeper into the ground, and also thought that he had lost the heel of one foot trying to drag it away from somebody, and testified, “ Well, I thought, you know, by signing these papers that I could get out of there, there was such a load on me, and I thought when those papers was signed that I was all right, that I could get out of this grave.”</p> <p>The plaintiff’s wife testified that when visiting her husband at the hospital after the accident he did not know her, nor her sister, nor his own sister for about two weeks and that he appeared “ dopy like, stupid.” She further testified that the next day after her husband signed the receipt she visited him at the hospital and as the result of a conversation with him found a piece of paper under his pillow which was a check from the defendant for $500. The plaintiff’s sister testified, that she visited the plaintiff at the hospital on May 12, and that “ he did not act himself, was stupefied, and would not talk with her; looked kind of dazed and sleepy, stupefied.”</p> <p>The defendant asked the judge to rule as follows:</p> <p>1. Upon all the evidence the plaintiff cannot recover.</p> <p>2. There is no evidence that the plaintiff was of insufficient mental capacity to understand that he signed a release in full of claims against the defendant.</p> <p>3. There is no evidence that the defendant failed to furnish suitable tools, instruments and materials for the plaintiff to work with.</p> <p>4. There is no evidence that the unsuitableness of the machinery, the tools, instruments and materials was the proximate cause of the injury.</p> <p>The judge refused to make any of these rulings. Among other instructions he cautioned the jury that the only ground under the declaration upon which they could render a verdict for the plaintiff was a defect in the machinery, to wit, the derrick, and if it should appear to the jury that the real cause of the accident was the negligence of those who were working with the plaintiff, the plaintiff could not recover, that the question was, “ What is the proximate cause of the accident? ” The judge explained the meaning of the word “ proximate ” in this connection in terms not objected to, and said that unless they found that the proximate cause, which was the direct, real cause and the effective thing that caused the occurrence, was that the machinery was defective, as alleged by the plaintiff, he could not recover.</p> <p>The judge instructed the jury that there was no evidence to support the allegation in the first count of the declaration that the plaintiff was injured by the defendant’s negligence in making an improper selection of fellow workmen, and that there was no evidence to support the second count of the declaration, and directed the jury to return a verdict for the defendant upon the second count. He submitted the case to the jury upon the aliegation in the first count that the machinery upon which the plaintiff was put to work was defective, and upon the question of the release.</p> <p>On the second count the jury returned a verdict for the defendant as ordered by the judge. On the first count the jury returned'a verdict for the plaintiff in the sum of $5,000; and the judge at the request of the parties reported the case for determination by this court. The terms of the reservation are quoted in the first paragraph of the opinion.</p>

<p>Practice, Civil, Exceptions.</p> <p>An exception to the charge of a judge cannot he taken for the first time at the hearing on a motion for a new trial.</p>

<p>Cross actions of contract, described in the first paragraph of the opinion, both upon a contract in writing dated June 20, 1893. Writs dated respectively September 7,1895 and August 15, 1902.</p> <p>In the Superior Court the cases were tried before Holmes, J., who made the rulings stated in the opinion. In the first action the jury returned a verdict for the plaintiff in the sum of $1,100 ; and the defendant alleged exceptions. In the second action the jury by direction of the judge returned a verdict for the defendant; and the plaintiff in that case, being the defendant in the first case, alleged exceptions.</p> <p>The opening portion of the contract sued upon, which contained all the provisions material to the exceptions in the first case, was as follows:</p> <p>“ Articles of agreement,</p> <p>“ Made and entered into this Twentieth (20) day of June, A. D. One Thousand Eight Hundred and Ninety-Three,</p> <p>“By and between Joseph Hebert of Northampton, Mass., as the party of the first part, hereinafter called the Contractor,</p> <p>“ And P. H. Dewey, of Northampton, Mass., as the party of the second part, hereinafter called the Proprietor.</p> <p>“ Witnesseth, first. The said party of the first part does, hereby, for himself and for his heirs, executors, administrators or assigns, covenant, promise and agree to and with the said party of the second part, his heirs, executors, administrators or assigns, that he, the said party of the first part, his heirs, executors, administrators or assigns, shall and will, for the consideration hereinafter mentioned, on or before the fifteenth day of November, in the year One Thousand Eight Hundred and Ninety-three, well and sufficiently erect, finish and deliver in a true, perfect and thoroughly workmanlike manner, all the different branches of work except the Mason Work, Stone Work, Plumbing, Heating and Grading required in the erection and completion of a Dwelling House for the party of the second part, on ground situated and being on Crescent Street, Northampton, Mass., agreeably to the Drawings and Specifications prepared for the said works by F. S. Newman, architect, to the satisfaction and under the direction and personal supervision of said F. S. Newman, architect, and will find and provide such good, proper and sufficient materials, of all kinds whatsoever, as shall be proper and sufficient for the completing and finishing of all the different branches of work required in the erection and completion of said buildings, as shown in the Drawings and mentioned in said Specifications, being signed' by the said parties, within the time aforesaid for the sum of Sixty-two Hundred Dollars.</p> <p>“ Second. The said party of the second part does hereby for himself and for his heirs, executors, administrators or assigns, covenant, promise and agree to and with the said party of the first part, his heirs, executors, administrators or assigns, that he, the said party of the second part, his heirs, executors, administrators or assigns, will and shall, in consideration of the covenants and agreements being strictly executed, kept, and performed by the said party of the first part, as specified, will well and truly pay, or cause to be paid, unto the party of the first part, or unto his heirs, executors, administrators or assigns, the sum of Sixty-two Hundred Dollars, lawful money of the United States of America, in manner following:</p> <p>“ First payment of Fifteen Hundred ($1500.00) when frame is up, boarded and roof on.</p> <p>“Second payment of Fifteen Hundred Dollars ($1500.00) when ready to plaster.</p> <p>“Third payment of Twelve Hundred ($1200.00) Dollars when ready for Hardware.</p> <p>“ Fourth payment of Two Thousand ($2000.00) Dollars.</p> <p>“ Being the balance due as per this contract when the building is all complete, the keys delivered, and when all the Drawings and Specifications have been returned to F. S. Newman, Architect.</p> <p>“ Provided, That in each case of the said payments, a certificate shall be obtained from and signed by said F. S. Newman, Architect, to the effect that the work is done in strict accordance with Drawings and Specifications, and that he considers the payment properly due; said certificate, however, in no way lessening the total and final responsibility of the Contractor ; neither shall it exempt the Contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the Drawings and Specifications, either in execution or materials; and provided further, that in each case a certificate shall be obtained by the Contractor, from the Clerk of the ofiice where liens are recorded, and signed and sealed by said Clerk, to the effect that he has carefully examined the records and finds no liens or claims recorded against said works, for or on account of said Contractor or any sub-C on tractor; neither shall there be any legal or lawful claims against the Contractor, in any manner, from any source whatever, for work or materials furnished on these works; and further whenever required a receipt or release of liens shall be obtained by the Contractor—from each sub-contractor showing that there are no claims against him and releasing him from all such claims on account of materials furnished or work done in said building.”</p> <p>The case was argued at the bar in September, 1905, before Knowlton, C. J., Lathvop, Hammond, Loving, & Bvaley, JJ., and afterwards was submitted on briefs to all the justices.</p>

<p>Insolvency, Fraudulent preference. Practice, Civil. A gency.</p> <p>In an action by an assignee in insolvency for the value of certain goods and certain sums of money alleged to have been delivered and paid to the defendant by the insolvent debtor as fraudulent preferences, the refusal of a ruling by a judge sitting without a jury on the ground that the ruling requested had become immaterial because he “ did not find as a fact upon all the evidence that the sale of the goods and the payments were made in fraud of the laws relating to insolvency ” is a finding of fact by the judge that the sale and the payments were not made with the intent on the part of the insolvent and the reason to believe on the part of the defendant which are necessary to sustain the plaintiff’s case.</p> <p>If a judge refuses “to rule in accordance with the third request and the fourth in the terms given,” semble that the third request is refused absolutely and the fourth in the terms stated.</p> <p>In a trial before a-judge sitting without a jury, if a party asks for a ruling correct in law and applicable to the case, which is refused by the judge, and the judge afterwards decides the case against him, he has a right to know whether the judge in deciding the case did or did not act under the rule of law stated in the ruling, and if the judge merely says that he declined to give the ruling in the terms stated and does not say what ruling he adopted, an exception by the party requesting the ruling must be sustained.</p> <p>In an action by an assignee in insolvency to recover from several defendants money alleged to have been paid to them respectively by the insolvent debtor as fraudulent preferences, the following ruling should be made when there are facts in the case to which it is applicable: “ The defendants are bound by the knowledge and intent which their agents had, and if any preference was obtained for any defendant by an agent, attorney or representative acting for him in the transaction, or if any conveyance fraudulent under the insolvency statute was made to any defendant, with a knowledge of the fraud on the part of any agent, attorney or representative in the transaction acting for him, the defendant is bound by the agent's knowledge and intent.”</p> <p>Under the insolvency laws if any part of the purpose of a sale or conveyance is a fraudulent preference under the statute the whole is voidable by the assignee.</p> <p>'The payment in full by an insolvent debtor of a note made by him secured to its full value by collateral belonging to him, so that the assets of his estate are not diminished by the payment, is not a fraudulent preference although when the payment is made the holder of the note knows that the insolvency of the maker is impending.</p>

<p>Petition under R. L. c. 197, filed in the Dorchester District Court on April 21, 1903, to enforce a mechanic’s lien for labor performed and materials furnished in building a cellar on land in Dorchester.</p> <p>Elizabeth Butland was alleged to be the owner of the premises at the time when the petitioner made the contract under which the work was done, and, she having died, her heirs were named as respondents. The respondent Blackwell was summoned in as mortgagee and appeared and answered.</p> <p>On appeal to the Superior Court the case was tried before jBell, J. The question tried was whether the lien was established as against Blackwell. There was no contention that the certificate was not seasonably filed in the registry of deeds or that the petition was not seasonably filed.</p> <p>Eleven issues were framed, which are printed on page 428.</p> <p>The record title to the property before the work was begun and the materials were furnished stood in the name of Henry B. Blackwell. On January 14, 1903, a deed was put on record conveying the property to Elizabeth Butland. This deed was dated January 1, 1903, and was acknowledged on January 14, 1903.</p> <p>On January 14,1903, a mortgage deed was put on record from Elizabeth Butland to Henry B. Blackwell giving Blackwell a mortgage for $4,000, payable in five years, with interest at five per cent per annum. This deed was dated January 1, 1903, and acknowledged on January 5, 1903.</p> <p>There was also a contract made between Blackwell and the Butlands dated January 1,1903, which is printed on pages 429,</p> <p>The other evidence was in substance as follows:</p> <p>The petitioner testified in substance that on January 2, 1903, the respondent John Butland called on him, and requested that he furnish him with an estimate of the cost of building a cellar upon certain land in Dorchester ; that thereupon they went upon the land in question, and while there Butland informed the petitioner that he was not the owner of the land, but might own it some day; that he had a contract in writing with Blackwell to build a house upon the land; that Butland then took from his pocket the contract dated January 1, 1903, and gave it to the petitioner to read ; that the contract was signed by both the Butlands and Blackwell; that the petitioner and Butland then made a verbal contract for the work and materials furnished, for which the lien was claimed; that the petitioner began work on the next day; that he saw Blackwell for the first time on January 6, 1903, at Blackwell’s home; that on January 6 the petitioner found a man upon the land in the employ of Blackwell engaged in cutting down trees, and stopped him; that he then went to Blackwell’s house and informed Blackwell what he had done; “ that he had stopped Blackwell’s man from cutting trees, as Butland had given him the trees ” ; that Blackwell responded, “ What right have you to stop my man from cutting down my trees, Butland does not own that land, and may never own it, he has a contract to build the work, and I have a good mind not to allow you to dig another shovelful of dirt there, and I want you to leave my house at once ” ; that the next morning Blackwell came to the place where the work was going on and told the petitioner that he wanted to apologize for what he had said to him the day before, adding: “It is a fine day, so push the work along, don’t take away too much dirt, and do a first class job ” ; that Blackwell came upon the land almost every day and gave him directions about the work ; that on January 11 or 12 Blackwell came on the land and said to the petitioner that “ he wanted the house changed like a plan he gave Butland to give me,” and gave the petitioner a sketch of a plan saying: “ follow that ”; that the petitioner continued to do the work according to this sketch or plan until about January 24 or 26, and that the work was nearly completed, when Blackwell came upon the land with another sketch or plan, and told the petitioner to change the work to conform to the sketch or plan which he then gave him; that the petitioner completed the work under the last sketch or plan, and that the petitioner ceased work on January 30, 1903.</p> <p>The respondent Blackwell testified in substance that in Jan-nary, 1903, he owned the land in question; that he wanted to sell the land to some one who would erect a house on it; that he would furnish part of the money for building the house, taking a mortgage as security; that he wanted the house to be of sufficient value to make it a good security for the mortgage; that he met Butland and Butland agreed to buy the land and erect a house on it; that Butland had no money, and it was agreed that Butland should take a deed of the land and give a mortgage of $4,000 the consideration of which was $1,500, the price of the land, and $2,500, which Blackwell was to advance toward the construction of the house as the work progressed; that at Butland’s request the transaction was made in his wife’s name; that about January 4 or 5, 1903, he, Blackwell, drew the contract printed on pages 429,430, a deed of the land from himself to Elizabeth Butland, and a mortgage back from Elizabeth Butland to himself; that he dated all the papers January 1 for convenience; that he gave the contract, the mortgage and the mortgage note to John Butland, the husband of Elizabeth, for him to obtain her signature to the papers; that a day or two afterward Butland returned the papers to him signed by Mrs. Butland; that he held the papers in abeyance until the plan of the house could be agreed upon, as he did not intend to complete the transaction until the plan was satisfactory; that he sent his man down to cut some trees and the petitioner came up to his house to see about it; that the petitioner said Butland had given him the trees, and Blackwell responded, “Butland don’t own the land, and may never own it, and he has no right to the trees, and I forbid you from cutting any trees or doing any work on the land ”; that he did not see the petitioner again until after the contract was completed; that several plans of a house were considered before one was selected, which consumed several days of time; that on January 14, everything being satisfactory, Butland and the respondent Blackwell went to the registry of deeds, that Butland then signed the contract, the mortgage and the mortgage note; that the respondent Blackwell then signed and acknowledged the deed, and signed the contract, and that the deed and the mortgage deed then were recorded together; that it was all one transaction; that But-land paid nothing for the land; that he, Blackwell, did not authorize Butland to make a contract with any one to work on the house, and that he did not know that McCormack had been employed, or that he had done any work until after January 14,1903.</p> <p>It appeared in evidence that John Butland died after the petition was filed.</p> <p>The foregoing was all the material evidence in the case.</p> <p>Upon the issues for the jury the parties agreed upon the answers to issues one and four, and the judge directed the answers to issues two, three and eleven before the verdict of the jury and to issues nine and ten after the verdict. The issues numbered five, six, seven and eight were submitted to the jury and answered by them.</p> <p>The issues with the answers to them were as follows:</p> <p>1. Was Elizabeth Butland the owner of the land mentioned in the petition at the time she made the contract with the petitioner? “No.” By agreement.</p> <p>2. Did the respondent have a valid mortgage on said land, duly recorded prior to the date of contract which Butland had the right to make with the petitioner, under which the lien is claimed? “No.” By order of the judge.</p> <p>3. Did said Butland have sufficient title to said land, at the time she made said contract with the petitioner, to charge the land with a lien which will avail against said Blackwell mortgage? “Yes.” By order of the judge.</p> <p>4. Did the deed of said land from Blackwell to Butland, and the mortgage back from Butland to Blackwell, both dated January 1, 1903, constitute one transaction, so that the seisin of Butland was instantaneous? “Yes.” By agreement.</p> <p>5. Was there any contract made between the respondent Blackwell and Elizabeth Butland, by which said Butland contraeted with Blackwell to do the work which the petitioner McCormack did ? “ Yes.”</p> <p>6. If so, on what day was such contract made, and when did it take effect ? “ Before January 2, 1903.”</p> <p>7. Was it with the consent of the respondent Blackwell as owner, or of any person rightfully acting for him as owner, shown by acts or declarations other than the contract of January 1, that the labor was performed and the materials were furnished as set out in the petition ? “ Yes.”</p> <p>8. If such consent was given, was it before or after January 14? “Before January 14, 1903.”</p> <p>9. What was the date of delivery of the deed and mortgage between Blackwell and Butland ? “ Before January 14, 1903.” By order of the judge.</p> <p>10. What was the date of contract between Butland and the petitioner? “ January 2, 1903.” By order of the judge.</p> <p>11. Was the written contract of January 1, 1903, between Butland and Blackwell, as matter of law, a consent which charged the land with a lien as against Blackwell, mortgagee ? “ Yes.” By order of the judge.</p> <p>The respondents requested the judge to rule that on all the evidence and findings, and on the whole record, the lien could not be established.</p> <p>The respondent Blackwell requested the judge to rule that on all the evidence and findings, and on the whole record, the lien could not avail against the mortgage.</p> <p>The judge refused to rule as requested, and ruled that the lien . should be established, and that a sale should be decreed; and reported the case for determination by this court. If the rulings and refusals to rule and orders were correct, the lien was to be established; otherwise, the petition was to be dismissed as against Blackwell, or such other order was to be made as justice might require.</p> <p>The contract between Blackwell and the Butlands mentioned in the foregoing statement was as follows:</p> <p>“Boston, Mass., Jan. 1, 1903.</p> <p>“Memorandum of agreement entered into by and between John Butland and Elizabeth Butland, his wife, in her right, of the city of Malden, County of Middlesex, and Commonwealth of Massachusetts, party of the first part, and Henry B. Blackwell, of the city of Boston, County of Suffolk, and Commonwealth of Massachusetts, party of the second part: Witnesses:</p> <p>“ That said party of first part hereby contracts to erect upon lot numbered five (5) on a plan of lots made by Briggs, surveyor, fronting on Neponset avenue, westerly side of same, said lot being forty-one feet front on said avenue, by about one hundred feet deep, containing 4000 square feet of land, and situated from 164 feet to 205 feet northerly of the line of Boutwell street, this day January 1, 1903, conveyed to said party of first part, by said party of second part — a house 26 feet front by 36 feet deep, complete according to a plan and specifications hereto attached, — said house to be of first class material and workmanship, with cemented cellar and set tubs, furnace, bath-room and water closet, etc., open plumbing, gas fixtures, and electric light— the whole to be complete and ready for occupancy by May, 1903; and free from liens, or possibility of liens, and insured for the sum of four thousand dollars, according to plans and specifications as part of this agreement, being those of a house built for Mrs. A. L. Lincoln, by Eld ridge, Mattapan, to which reference is made.</p> <p>“ And said party of second part hereby contracts and agrees to pay to said party of first part, the sum of twenty-five hundred dollars ($2500), as the house goes up, as follows: 1st. payment when building is boarded in and cellar complete .... $500.</p> <p>“ 2d. payment when outside is complete and ready to plaster, chimney built and topped, and first coat of paint on ... . $800.</p> <p>“ 3d. payment when house is plastered and furnace in . . . $300.</p> <p>“ 4th payment when standing finish is up and plumbing complete .... $400.</p> <p>“5th payment when house is fully completed, paths made and graded, and all ready for occupancy, etc., connected with city sewer .... $500.</p> <p>“Total .... $2500.</p> <p>“ The building when completed is to cost not less than $5000. It is to be set back from Neponset avenue parallel with the line of the adjoining buildings.</p> <p>“ When the house is completed the party of the first part agrees to change the note and mortgage, if desired to do so by party of second part, for two notes secured by first and second •mortgages for sums preferred by party of second part, amounting together to $4000. — the first mortgage and note to be payable in five years from this date, and the second mortgage and note to be payable at three years from this date, both with interest until paid at five per cent., payable semi-annually.”</p> <p>“ Witness our hands this first day of January A. D. 1903 in duplicate.</p> <p>“ Elizabeth Butland,</p> <p>John Butland,</p> <p>Party of first part.</p> <p>Henry B. Blackwell,</p> <p>Party of second part.”</p>

<p>Tokt by the daughter of the tenant of one half of a double house numbered 2 on Cliff Street in that part of Boston called Roxbury, against the owners of the house, for personal injuries from falling and slipping down the front door steps when covered with ice. Writ dated November 14, 1902.</p> <p>At the trial in the Superior Court before Wait, J. the plaintiff testified that she had lived with her mother in the house in question since April of 1901; that December 8, 1901, a Sunday, was a beautiful warm day, a thawing day; that she had not been out during the day, but that about 6.45 P. M. she with her husband and mother started to go to church; that she was ’ the first to go out; that as she stepped upon the top doorstep and had her hand on the railing her foot slipped and both feet went out from under her and she slid in a sitting position down the entire flight of seven wooden front steps and received the injuries sued for; that the cause of her fall was ice on the steps; that this ice covered the steps; that she thought it ran the whole length of the steps; that previously she had noticed water coming-down on these steps when it rained; although at no previous time had she seen any frozen water or ice there; that the water which was frozen into the ice on which she fell came from the gutter overhead, over the steps; that before the accident certain repairs were made on the outside of the house by an agent of the defendants; that “ they patched the roof ” and also cleaned the gutter. • - -</p> <p>In further description of the accident the plaintiff testified, that she opened the door and stepped in her usual way; that it had been warm all day and she never thought of it freezing; that it was a dark night and she could not see very much of the steps as she stepped out from the door; that she could not see whether there was ice on the steps or not; that there was no light inside the house; that both feet were on the step when she slipped and both went out together; that she did not feel the ice the first step she took; and that she was “ sure-footed.”</p> <p>There was evidence in regard to the making of repairs on the house by the defendants’ agent and of a usage in Boston when an entire house is let orally for the owner to make outside repairs, which is described in the opinion.</p> <p>The judge ordered a verdict for the defendants; and the plaintiff alleged exceptions.</p>

Complaint, received and sworn to in the Central District Court of Worcester, on July 17, 1905, charging the defendant with driving an automobile at Leicester on July 12, 1905, at a rate of speed exceeding twelve miles an hour. In the district court the defendant was found guilty and ordered to pay a fine of $15.

<p> Municipal Corporations. Contract. Mandamus. Way. </p> <p>Semble, that the officers of a city who have authority to lay out and construct highways and to assess betterments for their construction have power to make a contract in behalf of the city with one whose land is to be taken for a highway that betterments and damages for the taking of the land shall not be colIected until both can be determined so that they may be set off against each other and that the damages to be paid for the land shall be a stated sum.</p> <p>A petition for a writ of mandamus is the proper remedy to compel a city to proceed with the construction of a street unreasonably delayed after it has been begun.</p> <p>The owners of land in Boston over which it was proposed to lay out a street signed an instrument in writing stating that in consideration of the immediate laying out and construction of the proposed street at a certain width under the provisions of a certain statute, and of the delaying of the assessment of betterments until the amount of the damages caused to the signers by the taking of this land and the cost of the construction should be determined, and of the damages being offset against the proportionate part of the cost to be levied upon their respective estates, the owners of the land agreed that the payment of damages should be delayed until the balance due from each of them after making such offset had been determined, and further agreed to accept in payment for their land to be taken for the street certain prices per square foot there stated. The instrument was not signed by any one in behalf of the city. Thereafter the street commissioners made an order laying out the street and ordering that it be constructed, and assessed damages for the land taken according to the provisions of the instrument. The city began the construction of the street, did the necessary filling, put in water pipes and constructed a sewer in accordance with the order of the street commissioners, but did not complete the street in accordance with that order. " No gutters, cross walks or sidewalks were built and no macadam was put upon the roadway. A reasonable time within which the street might have been finished long had elapsed. No betterments had been assessed. Some of the signers of the instrument brought an action of contract for the damages awarded to them by the street commissioners. Others of the signers filed a petition for a writ of mandamus to compel the city to finish the street. Semble, that the offer of the signers of the instrument, being apparently an advantageous one for the city, was one which its representatives lawfully might accept, and that if the city had performed its terms the offer would have become a contract binding on both parties, but held, that the city having failed to complete the street had not complied with the terms of the offer, and therefore that the signers were not bound by it and could recover their damages without waiting for the assessment of betterments, and that those signers who did not sue for their damages but petitioned for the writ of mandamus to order the city to complete the street were entitled as property owners and members of the public to have the writ issue. Whether if, after the completion of the street, the petitioners for the writ of mandamus should sue for their damages without waiting for the assessment of betterments, the city would be permitted to defeat the action by setting up its own neglect, quaere. Hammond, J. concurring in the result reached but not in the reasoning of the opinion.</p>

<p> Carrier. Contract. Bill of Lading. </p> <p>If a shipper of goods accepts from a carrier a receipt for the goods stating on its face that the property is received for transportation upon the conditions printed on its back, those conditions become a part of the contract.</p> <p>If a shipper of goods accepts from a carrier a bill of lading stipulating that unless it is therein directed that the property shall be delivered to the “ order ” of the consignee the property may be delivered without requiring the production or surrender of the bill of lading, the carrier performs his duty by delivering the goods to the person to whom they are addressed and who is named as consignee.</p> <p>Where goods are delivered by a carrier to the person to whom they are addressed in accordance with the terms of the bill of lading it is immaterial that the consignor meant by the address another person of the same name if this fact was not communicated to the carrier.</p> <p>In an action against a common carrier for the loss of three cases of shoes, the following facts appeared: The plaintiff was a shoe dealer in Boston named Louis Singer, and delivered the cases of shoes to the defendant for transportation to Springfield, Illinois, marked “L. Singer, Springfield, 111.” He took from the defendant a receipt on the face of which was printed “The conditions upon which the above mentioned property is received for transportation are printed on the back hereof.” On the back of the receipt among other stipulations was printed the following: “ If the word ‘ order ’ is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of a party to be notified of the arrival of the property, the surrender of this bill of lading, properly endorsed, shall be required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein, the said property may, at the option of the carrier, be delivered without requiring the production or surrender of this bill of lading.” On the receipt under the heading “ Marks and numbers ” was written “ L. Singer, Springfield,, 111.” The word “ order ” was not used. The defendant without calling for any bill of lading delivered the goods to Lena Singer, a dealer in second hand furnishing goods, boots and shoes, doing business in Springfield, Illinois, under the name of L. Singer. She was so known to the defendant’s representatives there and goods had been received for her over the defendant’s line nearly every week addressed to L. Singer. The plaintiff intended to direct the cases to himself. He did not know that there was any person of the name of Lena Singer or L. Singer in Springfield, Illinois. He indorsed the receipt in blank, attached it to a draft for the purchase money, and sent it through a bank in Boston to Springfield, Illinois, with a request to notify his customer in Springfield, Illinois, who had ordered the shoes from him. For about five years the plaintiff had been sending goods about six or seven times a year by the defendant to the same customer at Springfield, Illinois, addressed in the same way, and never had had any trouble before. Held, that the contract of the defendant was to deliver the cases of shoes.to L. Singer, Springfield, Illinois, without requiring the production of a receipt or bill of lading, and that the defendant had performed this contract and was not liable to the plaintiff for the loss of the goods. Held, also, that the fact that the plaintiff for five years had sent goods six or seven times a year addressed in the same way was immaterial, as the defendant’s agent at Springfield was not bound to remember this, and was not chargeable with knowledge of the fact.</p> <p>Where the instructions to a carrier as to the delivery of goods are plain and not doubtful under the circumstances known to the carrier, if he follows the instructions he has performed his duty and no question of his negligence arises.</p> <p>If a shipper of goods wants them held as security for his draft for the purchase money he should have the goods billed to his own order and indorse the bill of lading to the bank discounting his draft. If instead of this he bills the goods “ straight ” he may lose his security by the carrier delivering the goods without the production of the bill of lading.</p>

<p>Slander. Pleading, Civil.</p> <p>A declaration for speaking slanderous words concerning the plaintiff in a foreign language must set out the words as spoken in the foreign language and also their meaning in English, and the plaintiff must prove as a necessary part of his case that the translation of the foreign words in his declaration is correct.</p>

<p> Mechanic's Lien. </p> <p>Pub. Sts. c. 191, § 1, now R. L. c. 197, § 1, gives a lien for labor furnished as well as for labor performed and a petitioner may establish a lien for labor under the statute although he did none of the work personally.</p>

<p>Assignment, For the benefit of creditors. Trust. Equity Jurisdiction, Accounting, Circuity of action, Laches. Equity Pleading and Practice, Parties, Multifariousness. Attorney at Law. Limitations, Statute of.</p> <p>A voluntary assignment for the benefit of creditors when accepted by the assignee establishes a trust, the enforcement of which can be compelled in equity by a creditor or by the assignor, each of whom also is entitled to an accounting by the assignee.</p> <p>One who by an assignment in writing has acquired the rights of a corporation, which has made an assignment for the benefit of creditors, and the rights of all the creditors, can maintain a suit in equity in his own name under R. L. c. 173, § 4, against the assignee to enforce the trust created by the assignment.</p> <p>In a suit in equity by the creditors of an insolvent corporation, which has made a common law assignment for the benefit of creditors, to enforce the trust created by the assignment and for an accounting by the assignees, if the bill alleges that one of the assignees joined with a certain creditor in an illegitimate diversion of the property not participated in by his associates, by making a large money payment to the creditor in excess of his ratable proportion of the assets, and that subsequently the same creditor with the assent of the other assignees received merchandise of great value in payment of his debt in excess of his ratable proportion, the creditor may be made a defendant, to compel restitution from him, and his joinder as a party does not make the bill multifarious; nor does the fact that the several assignees are charged with being unfaithful to their trust in different ways prevent all the matters relating to the proper administration of the estate being disposed of in one suit to avoid circuity of action.</p> <p>In a suit in equity by the creditors of an insolvent corporation, which had made a common law assignment for the benefit of creditors, to enforce the trust created by the assignment and to compel an accounting by the assignees and the restitution of money and property by one of the creditors to whom it had been paid and transferred fraudulently by the assignees in excess of his ratable proportion of the assets, an attorney at law under whose advice the assignees had acted also was made a defendant, and the bill alleged that he in conjunction with the assignees actually received the entire assets of the assignor so far as they consisted of personal property, and actively joined in collusion with the assignees in the payment and transfer to the creditor unlawfully favored, and also that he received and still retained a substantial balance in money due to the creditors which he together with the assignees refused to pay over or account for. On demurrer held, that the attorney at law properly was made a defendant and that his participation in the fraudulent conversion of trust funds set forth in the bill gave ground for relief against him.</p> <p>As affecting the liability of a trustee under an express trust for a fraudulent or unfaithful act the statute of limitations does not begin to run at law until the trust is terminated or repudiated by the trustee, and the same rule is applied in determining whether a plaintiff in equity has exercised reasonable diligence.</p>

<p> Frauds, Statute of. </p> <p>An oral promise, in consideration of signing as surety the bond of a third person at the request of the promisor, to save the signer harmless from all loss on account thereof, is not a special promise to answer for the debt, default or misdoings of another within the meaning of R. L. c. 74, § 1, cl. 2.</p>

<p> Contract. Trade Name. Trademark. </p> <p>In an action on an account annexed by a corporation conducting an advertising agency against the members of a firm of wholesale liquor dealers for advertising, it appeared that the plaintiff through an agent undertook to advertise a new brand of whiskey to be bottled by the defendants, and in good faith suggested a trade name for it which the defendants selected and adopted, several other names also having been suggested by the plaintiff’s agent. The defendants undertook to attend themselves to registering the name as a trademark, and registered it in the Patent Office as a label instead of a trademark. The plaintiff began to advertise the whiskey and the defendants to put it on the market, both acting in good faith, when it was discovered that one of the largest wholesale liquor dealers in the West claimed the exclusive right to use the trade name adopted by the defendants, that he had registered it as a trademark twenty-five years before and had been selling whiskey under the name ever since. He forbade the defendants to use the name, and they discontinued the use of the name and the label. They immediately instructed the plaintiff to stop all further advertising, and no more was done after that. Held, that there was no warranty by the plaintiff’s agent express or implied that the trade name adopted was new, and that there was no want or failure of consideration for the contract under which the work was performed; accordingly that a finding for the plaintiff on its account annexed for a reasonable compensation for the work already done was justified. Held, also, that the validity of the trademark of the western dealer who forbade the use of the trade name was immaterial, and that it did not matter whether the defendants made a blunder in registering a label instead of a trademark, as no damages were claimed for a breach of a contract for further advertising.</p>

<p>Negligence, Employer’s liability. Ship.</p> <p>The hatches of a vessel are not part of the ways, works or machinery of a shipper engaged in loading the vessel with meat. Following Hyde v. Booth, 188 Mass. 290.</p> <p>An order given by a superintendent to a man at a winch to hoist must be interpreted as an order to hoist in a proper way.</p> <p>There is no duty on the part of a corporation engaged in shipping beef to warn an experienced workman accustomed to loading vessels with meat that the ladder hatch on the deck of a vessel will have to be taken off to enable some of the workmen to go into the hold to pack away the beef.</p> <p>In an action by a workman in the employ of a corporation engaged in shipping beef and other meats against his employer for injuries caused by his falling into the open part of a hatchway of a vessel on the closed part of which he was standing, when stepping backward to avoid a run or skid which swung while being hoisted, it appeared that the plaintiff was an experienced workman accustomed to loading vessels with meat, that the rest of the workmen were on the deck where there was plenty of room, that the opening into which the'plain tiff fell had been left by two of his fellow workmen who had taken off one of the planks of the hatchway so that they could go below by a ladder which was there, and had not replaced it because one of the men who was to go below was still on deck, that the usual order to hoist was given, preceded by a warning from the superintendent in charge for the men to get out of the way, that the plaintiff had been ordered by another superintendent on the pier “ to go ahead up and help get the runs in,” that when he got on the deck of the vessel he stepped up on to the covered part of the hatchway, the coaming of which was from twelve to sixteen inches above the deck, that he noticed that one half of the other side of the hatchway was uncovered, but did not notice that the ladder hatch was open, that he noticed that the men were putting a chain around the run to hoist it, and that then the order was given to the man at the winch to hoist and the run came up and swung and pressed against him but did not hit him. Held, that, even assuming that the plaintiff was in the exercise of due care in being on the hatch instead of on the deck, there was no evidence of negligence on the part of the defendant’s superintendent whose order to hoist must be interpreted as an order to hoist in a proper way, and that there was no duty on the part of the defendant to warn a man of the plaintiff's experience that the ladder hatch would have to be taken off to enable some of the workmen to go into the hold to pack away the beef.</p>

<p> Negligence. Street Railway. </p> <p>In an action against a street railway company for personal injuries, if there is evidence that the plaintiff and another person were driving in a buggy on a bright morning and, being about to cross the tracks of the defendant in a city street, stopped arid looked both ways for cars and listened, that they saw and heard nothing, that they then proceeded to cross the street in a diagonal direction and almost immediately were struck by a car, and there is conflicting evidence as to the speed of the car and on the question whether a gong was sounded, the case is one for the jury.</p>

<p>Agency, Commission. Broker. Contract.</p> <p>If an agreement in writing between a real estate broker and the owner of land authorizes the broker to sell the land for a price named and provides that “ all over that amount that it is sold for” the broker “has as his commission,” and if a subsequent agreement naming a somewhat higher price provides that the broker “ is to have for himself as commission all over that amount he can get for it,” the commission is not earned by making a binding contract of sale for a price above that fixed by the agreement, which for some reason that does not appear is not carried out, the contract being one not merely to find a purchaser but to effect a sale, and the broker cannot recover on the contract or on a quantum, meruit without showing a completed sale or allowing that the owner when offered the purchase money refused to convey the land.</p>

<p> Negligence. Street Bailway. </p> <p>A man seventy-eight years of age and very deaf, who walks between the rails of a street railway track because the walking is better there than on the highway and does not once look around to see whether a car is coming, is not in the exercise of due care, and if he is killed by a car the executor of his will cannot recover against the railway company for his death and conscious suffering.</p>

<p>Practice, Civil, Exceptions.</p> <p>An exception will not be sustained to the exclusion of a conversation where it does not appear in the bill of exceptions what the conversation was or in what way the excepting party was injured by its exclusion.</p> <p>It is right to refuse an instruction where there is no evidence in the case to which it properly can apply.</p>

<p>Contract by a dealer in household furniture against a married woman living with her husband for the price of certain articles of household furniture bought of the plaintiff at various times from March 26, 1897, to October 27,1899, and for moving certain articles of furniture. Writ in the Municipal Court of the City of Boston dated September 17,1908.</p> <p>On appeal to the Superior Court the case was tried before Stevens^ J. At the close of the evidence, the character of which is described in the opinion, the defendant asked the judge to order a verdict for the defendant on the ground that there was no evidence of a contract between the plaintiff and the defendant to warrant a verdict for the plaintiff. The judge refused to rule as requested and submitted the case to the jury. The jury returned a verdict for the plaintiff in the sum of $109.63; and the defendant alleged exceptions.</p>

<p>Tort for personal injuries. Writ dated November 15, 1902. The declaration alleged that on April 2, 1902, the plaintiff, a newsboy between twelve and thirteen years of age, licensed by the city of Boston, by the invitation of the defendant and by its direction boarded one of the cars owned by the defendant for the purpose of selling newspapers, and that the plaintiff was safely on the car, but that the defendant by its servants and agents carelessly, negligently and wilfully frightened and put the plaintiff in fear by ordering him to jump off the car and by shouting at him in forcible language, so that he became terrified, lost his footing and was thrown with violence from the step of the car to the ground and under the wheels of the car.</p> <p>At the trial in the Superior Court before Wait, J. there was evidence for the plaintiff that on April 2, 1902, at about half past ten o’clock in the evening the plaintiff was standing on the sidewalk in Bowdoin Square near the Revere House selling his papers; that he was familiar with the neighborhood, and had been in this country a year, engaged most of the time in selling papers; that the streets were lighted as usual upon this night; that a man standing on the front platform of a car coming up Cambridge Street, about two car lengths away, whistled and motioned to him to come ; that he ran to the car, which was an ordinary closed box car of the defendant with an open platform in front, and got upon the right front step holding on to the upright rods on each side of the step and having his papers under his arm; that while he stood there the motorman stepped toward the plaintiff in a threatening attitude while the car was still in motion, both striking at him with his arm and kicking at him with his foot, at the same time saying “ to hell out of here ”; that the plaintiff was frightened and fell upon the ground partly under the car, and his right foot was caught under the right front wheel of the forward truck and so badly crushed that a short time thereafter it had to be amputated ; that at the time the plaintiff got on the car it was within five feet of the dead stop at Bowdoin Square; that at the time the plaintiff fell the car was going about two miles an hour, and that it went only about five feet from the time the plaintiff fell until it stopped with the wheel over his foot; that the plaintiff had a license from the city of Boston to sell newspapers upon the sidewalks and streets, but which provided that the plaintiff should not sell upon the cars of the defendant without its permission, and the plaintiff did not have any express permission; that a rule of the company forbids the motorman and conductor to allow any newsboy, except those employed by the Hotel and Railroad News Company and having a badge of that company upon his arm, to sell newspapers upon the car; and that the plaintiff was not employed by that company.</p> <p>The plaintiff offered to testify that he frequently had got upon the cars of the defendant before the accident and sold newspapers without any objection from the conductors and motormen and without being put off. To this the defendant objected and the judge ruled that it was immaterial and irrelevant and excluded it.</p> <p>The foregoing, although in part contradicted by witnesses for the defendant, was all of the material evidence. The judge ruled that the plaintiff could not maintain his action, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p>

<p> Replevin. Execution. </p> <p>In order to maintain an action of replevin the plaintiff must show that he has the general or a special property in the articles replevied and also the right of possession.</p> <p>A seizure of chattels on execution by an officer gives him a special property in the chattels which .while he retains it is sufficient to support an action of replevin.</p> <p>R. L. c. 167, § 45, providing for the attachment “of articles of personal property which, by reason of their bulk or for other cause, cannot be immediately removed,” does not apply to the seizure of chattels upon an execution.</p> <p>If a deputy sheriff after seizing chattels on an execution allows them to remain for six weeks on the defendant’s premises without doing anything to retain custody of the property or to keep it under his control, the lien of the execution is lost.</p> <p>If an officer who has seized chattels on an execution adjourns the sale of them from time to time until the execution expires, and then returns the execution in no part satisfied, whether, if the officer lias retained possession of the chattels, his lien upon them by virtue of the execution still continues, quaere.</p>

<p>Elections. Clerics of Court. Superior Court. Suffolk County. Words, “Clerk of the courts.”</p> <p>An appointment of a clerk of the Superior Court for civil business in the county of Suffolk by the justices of the Superior Court under R. L. c. 11, § 277, to fill a vacancy caused by the death of the former clerk, is an appointment, not for the remainder of the term of five years, but only until “the next annual State election for which precepts can be seasonably issued,” for which the statute makes it the duty of the Governor to cause such a precept to be issued.</p> <p>The expression “clerk of the courts ” in St. 1893, c. 417, § 218, and in R. L. c. 11, § 277, includes the clerks of the Superior Court in Suffolk County.</p> <p>Under R. L. c. 11, § 149, when a certificate of a nomination for a State office has been filed with the secretary of the Commonwealth and is “ in apparent conformity with law,” it is “valid unless objections thereto are made in writing” and are filed in the manner prescribed by that section.</p> <p>If the Governor has ordered that a special election be held to fill a vacancy in the office of a clerk of court at the same time as the annual State election, and a candidate for the office is nominated at a caucus for the nomination of State officers held on the same day on which the precept for the special election is issued, so that the provisions of R. L. c. 11, §§ 89, 90, in regard to the calling of a caucus for a special election are not complied with, and if the nomination is certified to the secretary of the Commonwealth and the name goes unchallenged upon the printed ballot, and the candidate is elected, the irregularities in regard to the making of the nomination do not invalidate his election.</p>

<p>Tax, Collection. Constable.</p> <p>Under R. L. c. 13, § 31, a constable to whom a tax warrant has been issued by a collector of taxes can serve it anywhere in the Commonwealth. This power is not limited by § 79 of the same chapter providing for the issuing of warrants by the treasurer of a city or town when appointed the collector of taxes.</p> <p>Under R. L. c. 13, §§ 31, 87, the keeper of a county jail is liable in an action of tort to the collector of taxes of a city in another county for refusing to receive as a prisoner a delinquent taxpayer arrested in the county in which the jail is situated by a constable of the city in the other county on a warrant issued by the collector.</p>

<p>Tort for alleged malicious prosecution. Writ dated November 22,1901.</p> <p>At the trial in the Superior Court before Sherman, J. the following facts appeared:</p> <p>The defendant was the owner of a dwelling house at No. 10 Upton Street in Boston, and some time between Saturday November 9, and Monday November 11, 1901, this house was broken into and lead pipe, faucets and plumbing were stolen. On November 15,1901, complaint was made against the plaintiff by James Gr. Curtis, a police officer, and a warrant was issued. The complaint charged the plaintiff with entering the dwelling house of the defendant and stealing and carrying away five lead traps and ten feet of lead pipe. On November 19,1901, the plaintiff was arrested upon the warrant; on November 20 he was taken before the Municipal Court of the City of Boston, where his trial was begun. On November 21 his trial was concluded and he was discharged, and he brought this action on the same day but after his discharge.</p> <p>The plaintiff testified that he lived in Everett and was an inspector of cars on the Boston Elevated Railway; that in 1897 he went to work for the defendant, looking out for his houses and collecting rents which amounted to $1,000 or more a month, acting as a sort of general agent for the defendant; that he collected rents for the defendant until just before he was discharged ; that the reason for his discharge was that the defendant wanted him to receipt for $8 a week more than he had received; also that the defendant wanted him to testify falsely as to the burning of the defendant’s buildings ; that he was discharged by the defendant on October 28, 1901, and the defendant threatened at that time that he would put him behind the bars; that he was arrested by officer Curtis who was in uniform, and was taken from No. 47-|- Berkeley Street, where he had just opened a real estate office and stationery store, to police station No. 5 on East Dedham Street, Boston, and afterwards was taken to the Tombs and brought before the court; that he was arrested on November 19, 1901, taken before the court on November 20, and on November 21 was discharged.</p> <p>There was other evidence which is described or referred to in the opinion. At the close of the evidence the judge at the request of the defendant ruled that upon all the evidence the plaintiff was not entitled to recover, and ordered a verdict for the defendant. The plaintiff alleged exceptions.</p> <p>The parties agreed that if the plaintiff’s exceptions were sustained, judgment should be entered for the plaintiff in the sum of $500 ; otherwise, judgment was to be entered for the defendant upon the verdict. In case of the death of the defendant judgment was to be entered mmo pro tuno.</p>

<p>Tort for personal injuries caused by being thrown from and run over by a car of the defendant on Massachusetts Avenue in Cambridge on the evening of Sunday April 28, 1901, through the alleged negligence of the defendant’s agents and servants. Writ dated May 17, 1901.</p> <p>At the trial in the Superior Court Maynard, J. ordered a verdict for the defendant; and the plaintiff alleged exceptions. The evidence is described in the opinion.</p>

<p> Damages. Boston Elevated Railway Company. Elevated Railway. Evidence. </p> <p>Under St. 1894, c. 648, § 8, providing compensation for persons having an estate in premises which abut on a way in which the railway of the Boston Elevated Railway Company is constructed who are damaged by reason of the location, construction, maintenance and operation of that railway, and under § 9 of the same statute providing that the questions shall be “ Has the petitioner’s estate been damaged more than it has been benefited or improved in value ? ” and “ If so, how much % ” the railway company, on the trial of such a petition by the owners of a hotel opposite a station of. the elevated railway, which is connected on the other side of the street with the South Terminal Station, is entitled to set off against the damages of the petitioners any increase in the market value of the petitioners’ property resulting from the location of the respondent’s station in front of the premises and the consequent flow of travel to and from that station in so far as people are thereby induced to use the hotel or to advertise the hotel to others, and also any increase in market value resulting from the fact that the respondent's station in front of the premises furnishes the hotel and its patrons quick and convenient transit to the North Station and other parts of the city.</p> <p>On the trial of a petition under St. 1894, c. 648, § 8, by the owners of a hotel on Atlantic Avenue in Boston for damages caused by the construction, main- • tenance and operation of the elevated railway of the Boston Elevated Bailway Company, which is constructed substantially in the centre of Atlantic Avenue within thirty-two feet of the front of the hotel, its trains passing on a level with the bedroom windows, how far the judge in his discretion should admit evidence as to the percentage of front rooms that could be let before and after the operation of the elevated railway, to show the diminution in value of the peti- , tioner’s property for use in the business to which it seemingly is best adapted, quaere.</p>

<p> Street Railway. Receiver. Municipal Corporations. Mandamus. </p> <p>Under R. L. c. 112, § 12, the receiver of the property of a street railway company may sell its road and property, locations and franchises under an order of court to one who does not intend to organize a corporation for the purpose of holding, owning and operating the street railway purchased as directed by § 13 of the same chapter, but who makes his purchase for the purpose of removing and selling the rails.</p> <p>The purchaser of the property of a street railway company from a receiver selling it under R. L. c. 112, § 12, is under no duty to use the tracks for the operation of street cars, but, although the rails are his personal property, he has no right to break the surface of a public highway for the purpose of removing' them without the permission of the proper authorities.</p> <p>If an ordinance of a city provides that no person, unless authorized by law, shall break or dig up any part of any street without a license in writing from the superintendent of streets, and such superintendent refuses to grant to the owner of the tracks of a street railway, who is under no duty to use them for the operation of street cars, a license to take up the rails, and if this refusal is made from a desire of the superintendent to keep the rails in the streets in the hope that some person or corporation will operate cars over them, and the rails can be removed without any permanent injury to the street or unreasonable disturbance to public travel, the owner of the rails is entitled to a writ of mandamus commanding the superintendent of streets to hear and determine the owner’s application for a license without regard to any hope or desire that some person or corporation will operate street cars over the tracks in question but exercising his sound discretion as an officer charged with the care of the streets.</p>

<p>Contract, Construction. Evidence, Extrinsic affecting writings.</p> <p>In an action for the alleged breach of a contract in writing, it appeared that by the contract the defendants agreed to buy certain bonds, constituting the majority of an issue, from the plaintiff’s assignor at a price named, and that these bonds were bought and paid for by the defendants in accordance with the terms of the contract. The plaintiff contended that by the true construction of the contract the defendants also were bound to buy other outstanding bonds and certain stocks named in the contract, or to foreclose the mortgage securing the first named bonds, or to bid §100,000 when the mortgage was foreclosed, and also when the mortgage was foreclosed to pay the plaintiff’s assignor §10,000 less foreclosure expenses. The defendants did none of these things, but sold the bonds which they had purchased under the contract to a third person, a purchaser from whom foreclosed the mortgage and bid in the property for §1,000. The contract, although it provided what should be done in case the defendants bought the outstanding bonds and stocks named or in case they foreclosed the mortgage, contained no agreement on their part to do either of these things, and the agreements of the defendants to bid §100,000 when the mortgage was foreclosed and to pay the plaintiff §10,000 less expenses were shown by the language of the contract to refer only to a foreclosure by the defendants in case they elected to foreclose. Held, that the presiding justice was right in ordering a verdict for the defendants.</p> <p>An oral agreement afterwards changed and made part of a contract in writing is not admissible in evidence, or if proved has no effect. Here there was an express provision that all understandings and agreements between the parties so far as they were in conflict with the contract in writing should have no further force and effect.</p>

<p>Indictment, found and returned in the Superior Court for the county of Plymouth on June 6,1904, under R. L. c. 56, § 1, for selling plug tobaccos at Brockton and Bridgewater on January 1, 1904, making it a condition of each sale that the purchaser should not sell or deal in the plug tobaccos of any other person, firm, corporation or association of persons.</p> <p>At the first trial of the case in the Superior Court the jury returned a verdict of guilty, and exceptions alleged by the defendant were sustained by this court in a decision reported in 188 Mass. 229.</p> <p>There was a new trial of the case before GasJcill, J. The material facts which the jury were warranted in finding on the evidence are stated in the opinion.</p> <p>At the close of the evidence the defendant asked the judge to make the following rulings:</p> <p>“1. The statute under which the defendant is indicted is unconstitutional because it is in conflict with the Fourteenth Amendment to the Constitution of the United States.</p> <p>“ 2. The statute under which the defendant is indicted is unconstitutional because it is in conflict with article I. and article X. of paragraph the first of the Constitution of the Commonwealth of Massachusetts.</p> <p>“ 3. If the jury believes that orders given to the defendant for plug tobacco were submitted by him to an office of the Continental Tobacco Company outside of the Commonwealth of Massachusetts, to be there accepted or rejected, and that upon acceptance thereof plug tobacco was shipped to the merchant from outside the State, then the statute under which the defendant is indicted would, as sought to be applied to such an act, be unconstitutional, because in conflict with section 8 of article I. of the Constitution of the United States.</p> <p>“ 4. _ If the jury believes that the defendant named a price at which the plug tobaccos of his employer would be sold, and then stated to the merchant that if he, the merchant, bought or sold no plug tobaccos except that manufactured by the defendant’s employer, he would return a rebate of six per cent, such statement would not be a sale of goods on condition that the purchaser should not sell or deal in the goods of any other person, firm, corporation, or association of persons, and the verdict should be not guilty.</p> <p>“ 5. Upon all the evidence the jury should return a verdict of not guilty.</p> <p>“ 6. If the jury believes that the condition made by the defendant was that the merchant should deal exclusively in the plug-tobacco products of the Continental Tobacco Company, the employer of the defendant, then the act of the defendant would not be a violation of the statute, and your verdict should be not guilty.</p> <p>“ 7. Upon all the evidence there should be a verdict of not guilty upon the first count, it appearing that the witness Dutra did not accept the offer of better terms on condition that he would sell the plug tobacco of the Continental Tobacco Company exclusively.”</p> <p>The judge refused to rule as requested, and among other matters gave special instructions in regard to the first count referred to in the seventh request, which have become immaterial because the point was not argued by the defendant. The conclusion of the charge was as follows:</p> <p>“ So, gentlemen, I instruct you as matter of law that if the defendant, as a condition of the sale in each of these cases, made use of such a condition attached to the sale as he knew and believed would be virtually prohibitive to the purchaser from getting his company’s goods, and if he intended that it should so operate, and the purchaser so understood it, then that would constitute a violation of the statute. If you are satisfied beyond fair and reasonable doubt of that, you should convict; otherwise you should not.”</p> <p>The jury returned a verdict of guilty; and the defendant alleged exceptions.</p>

<p>Account Stated. Contract, Consideration. Equity Jurisdiction.</p> <p>To maintain an action at law upon an account stated the account must be founded on a previous relation of debtor and creditor.</p> <p>An account stated only determines the amount of a debt and cannot create a liability where none existed before.</p> <p>A promise by one of two brothers to share with the other the property left to the first by their mother is not binding without a consideration.</p> <p>Where property left to one absolutely by will can be shown by oral evidence to have been intended to be held by him one half for the benefit of another, the remedy of the beneficiary unmentioned in the will, if he has one, is in equity and not at law.</p>

Tort, by the husband of Bridget Duffee, for expenditures for her care and cure and loss of her services and consortium alleged to have been occasioned by the negligence of the defendant’s agents and servants in suddenly starting a car from which Bridget Duffee was alighting, causing her to be thrown to the ground and injured. Writ dated April 17, 1903.

<p> Frauds, Statute of. Agency. Auctioneer. </p> <p>The auctioneer at a foreclosure sale of real estate has no authority to bind the parties under the statute of frauds by signing a memorandum which does not state the terms of the sale correctly.</p> <p>The auctioneer at a foreclosure sale of a second mortgage of real estate, who sells the property subject to a first mortgage of $800 for the sum of $346 from which are to be deducted the amount of unpaid taxes and "some interest due on the first mortgage,” with the further stipulation that $100 is to be paid by the purchaser at the time and place of the sale, has no authority to bind the parties under the statute of frauds by signing a memorandum which states that the property will be sold subject to a mortgage of “ $800 as principal and accrued •interest as may be due thereon and all unpaid taxes and assessments,” and that the property was sold to the purchaser named for $346.</p>

Tort against Orlando W. Norcross, a general building contractor, doing business under the name of Norcross Brothers, for personal injuries incurred in the manner stated in the opinion between ten and eleven o’clock in the forenoon of November 11, 1901, while the plaintiff was in the employ of the defendant working in the construction of a ten story steel framed brick and stone building, called the Walker Building, on the corner of Boylston Street and Boylston Place in Boston.

<p>Partnership. Equity Pleading and Practice, Master’s report, Appeal. Equity Jurisdiction, Accounting between partners. Interest. Damages.</p> <p>In a suit in equity for an accounting between partners it appeared that for a period of six years, while a partnership formed by an oral agreement existed between the plaintiff and the defendant, the plaintiff, who by the agreement furnished money but not his own services, was carrying on a separate business under his own name, and that the business of the partnership and that of the plaintiff then were consolidated, each partner contributing his net share in the partnership theretofore existing and agreeing to give his whole time to the business, and the plaintiff contributing the net assets of the separate business theretofore carried on in his own name, on which as a special capital he was to receive interest at the rate of six per cent per annum, that the defendant about a year before the consolidation made an agreement with a certain company called a “ retainer ” by which that company was to pay the defendant $2,500 a year for an option on all his inventions in a certain class of machinery. On the question whether the $2,500 paid annually to the defendant for this “ retainer ” was made partnership property at the time of the consolidation, a master found “ that there was no agreement between the partners with reference to this money,” but later in his report said " There was a conference between the parties about the time after consolidation . . . with reference to the retainer, so called, received by ” the defendant. “ I find that from the conduct of the parties and their conversation, this retainer, namely, $2,500 per year, received by ” the defendant from the company in question, “ was partnership property, and the amount of the same received by ” the defendant “ should be charged to his account.” The defendant contended that the findings were inconsistent. Held, that the findings properly interpreted were not inconsistent, and that their fair meaning was that, while the matter of the retainer was not taken up and considered when the consolidation was made, the parties soon after took it up and reached the conclusion that the retainer should be considered partnership property. Held, also, that the finding of the master that the retainer was partnership property was a finding of fact and not a conclusion of law.</p> <p>Where a master's report contains no report of the evidence, a finding of the master cannot be revised on appeal from a decree confirming it unless upon the face of the report it is inconsistent with other findings and is plainly wrong.</p> <p>Where an order of reference to a master does not require him to report the evidence, he properly may refuse to report all the evidence upon a certain subject, although if asked to report the evidence necessary to bring clearly before the court a question of law raised by the requesting counsel it may be his duty to comply with the request.</p> <p>Where a suit for an accounting between partners has been referred to a master, who in his report finds that a certain sum of money is due from the defendant to the plaintiff, but says nothing about interest, in regard to which no point has been raised before him, if the judge makes a final decree overruling the defendant’s exceptions to the master’s report and ordering that the defendant pay to the plaintiff a certain sum of money with interest from the filing of the bill, no question as to interest having been raised, and the defendant appeals from the decree, naming it as the decree “ confirming the master’s report,” whether the question of interest is open to the defendant on the appeal, quaere.</p> <p>Where a suit for an accounting between partners has been referred to a master, who in his report finds that a certain sum of money is due from the defendant to the plaintiff but says nothing about interest, the judge may allow interest by way of damages from the date of the filing of the bill.</p>

<p>Petition, filed in the Land Court on June 20,1905, for the registration of title to a parcel of land in Melrose which is named in the opinion.</p> <p>The case was heard by Jones, J. The respondent claimed through a taking for non-payment of taxes assessed upon the property for the year 1902. The material facts are stated in the opinion. The judge ruled that the taking was illegal and void, and ordered a decree for the petitioner. .The respondent excepted to the ruling, and the judge at the request of both parties reported the case for determination by this court.</p>

<p>Contract, Implied: Common counts. Damages. Evidence.</p> <p>Where services are rendered under an understanding of both parties that they are to be paid for but no amount or manner of compensation is agreed upon, the recovery for the services can be only upon a quantum meruit and the basis of compensation is the reasonable value of the services, not what the plaintiff supposed he was to receive or what he might have had reason to expect.</p> <p>In an action against an administrator for compensation for personal services in giving up the plaintiff’s home and occupation, entering the family of the intestate, caring for him and his household,-entertaining him and making his home pleasant during his lifetime, under an understanding of both parties that the services were to be paid for but with no agreement as to the amount, the valuation placed upon the services by the parties, especially by the party to whom they were rendered, although not the measure of damages, may be considered as evidence in determining what the services reasonably were worth.</p>

<p> Negligence. </p> <p>In an action of tort against a dentist for alleged negligence in treating and cleansing the plaintiff’s teeth so that she became infected with syphilis there was evidence that the disease could be communicated by the contact of syphilitic virus on an instrument with a cut on a person’s body, that the defendant in cleansing the plaintiff’s teeth used a revolving circular metal disk and cut the plaintiff’s mouth in three places, that two or three weeks afterwards syphilitic sores began to form at the points where the cuts were made, that before this time there was no sign of the disease in the plaintiff or her husband, and that the disease was communicated to her in some way connected with the operation upon her teeth. There also was evidence that to prevent inoculation it is the habit of dentists to disinfect their instruments by boiling water or otherwise, and that the defendant was in the habit of using such means of disinfection. Held, that the questions, whether the plaintiff was inoculated with the disease by contact with the instruments used by the defendant, and whether this result was attributable to a want of proper care on his part in regard to the cleanliness of the instruments, were for the jury.</p>

<p>Three actions of tort against the city of Everett for damages caused by an alleged defect in a sewer in Bow Street in that city as stated in the opinion. Writs dated November 25, 1902.</p> <p>In the Superior Court the cases were tried together before Hitchcock, J. He ruled that the plaintiffs could not maintain their actions, and ordered verdicts for the defendant. The plaintiffs alleged exceptions.</p>

Tort by a teamster for personal injuries received on January 14, 1903, from a fall caused by the slipping of one of the two planks on which the plaintiff was standing while loading bags of meal upon his wagon from the mill occupied by the defendants, dealers in grain and meal, on Cambridge Street in that part of Boston called Charlestown, the bags being delivered to him through a chute by an employee of the defendants. Writ dated May 14, 1903.

<p>Tort by the members of a partnership engaged principally in the retail coal business with plants at Quincy and at Braintree for alleged slanderous words concerning the plaintiffs uttered by the defendant on February 3,1903, when the defendant was the mayor of the city of Quincy and was testifying under oath before a committee of the General Court, causing injury to the plaintiffs in their business. Writ dated February 6,1903.</p> <p>In the Superior Court the case was tried before Hitehcoch, J. It appeared that the committee in question were appointed under an order passed by the Senate and the House of Bepresentatives and were given the duties and powers which are described in the opinion.</p> <p>Upon the evidence introduced by the plaintiffs the judge ordered a verdict for the defendant on the ground quoted in the first paragraph of the opinion. The plaintiffs alleged exceptions.</p>

Tort for personal injuries from being kicked by one of a pair of horses attached to an ice team of the defendant as the plaintiff was walking along the sidewalk of Norfolk Place, leading from Harrison Avenue extension to Washington Street, in Boston, at 8.15 A. M. on April 25, 1902. Writ dated January 10,1903. At the trial in the Superior Court before Sherman, J. the evidence was conflicting.

Tort under St. 1887, c. 270, § 2, by the widow of Terenzo Chiappini for causing the instant death of her husband on December 21, 1899, by negligently putting him at work in an unsafe and dangerous place without warning or instruction in regard to the danger, alleged in different ways in three counts all under the statute. Writ dated January 8, 1900. In the Superior Court the case was tried before Bell, J. The evidence is stated in substance in the opinion.